Flawed Foundations: How Duncan v. Bonta Undermines Bruen and Second Amendment Protections

18 Apr, 2025

In Duncan v. Bonta (2025), the Ninth Circuit Court of Appeals, sitting en banc, upheld California’s ban on large-capacity magazines (LCMs), reversing a district court’s ruling that the law violated the Second Amendment. The case, brought by plaintiffs including Virginia Duncan and the California Rifle & Pistol Association, challenged California Penal Code § 32310(c), which prohibits possession of magazines holding more than ten rounds, with criminal penalties for noncompliance. Applying the framework from New York State Rifle & Pistol Ass’n v. Bruen (2022), the majority concluded that LCMs are not “arms” under the Second Amendment and that the ban aligns with historical traditions of regulating dangerous weapons. However, dissenting judges sharply criticized the decision, arguing it misapplies Bruen, reintroduces discredited interest balancing, and undermines Second Amendment protections through flawed reasoning and procedural irregularities.

The ruling in Duncan v. Bonta (9th Cir. 2025) has been heavily criticized, particularly by dissenting judges, for misapplying the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and for undermining Second Amendment protections. Below, I outline the primary issues with the ruling as articulated in the dissents, focusing on its alleged failure to faithfully apply Bruen, as well as other conceptual and procedural flaws. These criticisms are drawn from the document, particularly the dissents by Judges Bumatay, R. Nelson, and VanDyke, which argue that the majority’s reasoning distorts the Second Amendment framework established in Bruen and earlier cases like District of Columbia v. Heller, 554 U.S. 570 (2008).

1. Misapplication of Bruen‘s Two-Step Framework

Bruen established a clear methodology for evaluating Second Amendment challenges: (1) determine whether the Second Amendment’s plain text covers the individual’s conduct, and if so, (2) assess whether the government can justify its regulation by showing it is consistent with the nation’s historical tradition of firearm regulation. The dissents argue that the majority in Duncan v. Bonta manipulates both steps to avoid upholding Second Amendment protections.

A. Step One: Incorrectly Excluding Large-Capacity Magazines from “Arms”

The majority holds that large-capacity magazines (LCMs) are not “arms” under the Second Amendment because they are “optional accessories” rather than weapons or components necessary for a firearm’s ordinary operation. The dissents identify several flaws in this reasoning:

  • Conceptual Flaw in the “Arms vs. Accessory” Distinction:
  • Judge VanDyke argues that the majority’s distinction between “arms” and “accessories” is “hopelessly indeterminable and inadministrable” (Page 124). Firearms, like other complex objects (e.g., cars or computers), consist of many components, and determining which are “necessary” versus “optional” is arbitrary. For example, triggers, grips, or sights could be deemed “optional” under the majority’s logic, yet they are clearly protected (Page 126-127).
  • The majority concedes that magazines are integral to some firearms’ operation and thus protected, but arbitrarily excludes LCMs because they hold more than ten rounds. VanDyke notes that this logic could justify banning magazines holding more than one round, as a single-round magazine is sufficient for minimal operation (Page 127).
  • The distinction lacks historical grounding. The majority cites Founding-era references to “arms and accoutrements” (Page 26), but VanDyke counters that components like flint (essential for flintlock firearms) were historically considered accoutrements yet integral to operation, undermining the majority’s test (Page 129).
  • Ignoring Heller and Bruen‘s Broad Definition of “Arms”:
  • Heller defined “arms” as “weapons of offence, or armour of defence” used for self-defense, including modern instruments (Page 25, citing Heller, 554 U.S. at 581). Bruen extended this to “all instruments that constitute bearable arms” (Page 24, citing Bruen, 597 U.S. at 28). Judge Bumatay argues that LCMs, as integral components of commonly used firearms, fall within this definition (Page 122).
  • The majority’s narrow interpretation excludes LCMs despite their widespread use (approximately half of privately owned magazines hold more than ten rounds, Page 15) and their integration into standard firearm packages (Page 15, citing Kolbe v. Hogan).
  • Inconsistent Application of Precedent:
  • The majority acknowledges that the Second Amendment protects components necessary for firearm operation, such as ammunition (Jackson v. City & County of San Francisco, Page 25) and magazines (Fyock v. Sunnyvale, Page 25). However, it arbitrarily excludes LCMs, despite their functional equivalence to smaller magazines in enabling firearm operation (Page 28-29).
  • VanDyke highlights that the majority’s test would limit Second Amendment protection to the “jankiest version” of a firearm, undermining the right to effective self-defense (Page 130).

B. Step Two: Diluting the Historical Tradition Test

If the conduct is covered by the Second Amendment’s plain text, Bruen requires the government to demonstrate that its regulation is consistent with the nation’s historical tradition of firearm regulation, using analogical reasoning to identify “relevantly similar” historical laws (Page 30, citing Bruen, 597 U.S. at 24, 28-29). The dissents argue that the majority distorts this test to uphold California’s ban.

  • Overgeneralizing Historical Analogues:
  • The majority cites historical regulations (e.g., gunpowder storage laws, Bowie knife bans) as evidence of a tradition of regulating “especially dangerous” weapons or uses (Page 31, 45). However, Judge Bumatay argues that these analogues are not “relevantly similar” to California’s LCM ban (Page 122).
  • For example, gunpowder storage laws aimed to prevent fires and explosions, not to restrict firearm use (Page 132, citing Heller, 554 U.S. at 632). They imposed minimal burdens (e.g., storing excess gunpowder in a container) and did not ban possession, unlike California’s outright ban on LCMs (Page 133).
  • Bowie knife and slungshot regulations typically restricted carry outside the home, not possession (Page 120). The majority’s reliance on these laws to justify a possession ban overstates their scope and misaligns the “how” and “why” of the regulations (Page 120).
  • Lowering the Standard for Historical Similarity:
  • Bruen requires a “distinctly similar” historical regulation or, in cases of “unprecedented societal concerns or dramatic technological changes,” a regulation that is “relevantly similar” in how and why it burdens the right (Page 30, citing Bruen, 597 U.S. at 24, 29). The majority adopts a “flexible” and “nuanced” approach, claiming that LCMs represent a “dramatic technological change” (Page 131).
  • Judge VanDyke criticizes this as a “sloppy” fit, arguing that the majority generalizes the “why” to “preventing especially dangerous uses” and the “how” to “prohibiting certain methods” (Page 133). This allows virtually any regulation to pass muster, as governments have long banned “dangerous” items (Page 133).
  • Bumatay notes that the majority’s approach resembles the interest-balancing test rejected in Bruen, comparing the regulation’s burden to its justification rather than comparing the “how and why” of historical and modern laws (Page 119-120).
  • Ignoring the Burden on Self-Defense:
  • The majority claims that California’s ban imposes a “minimal burden” because it only requires a pause to reload after ten rounds, which it deems rare in self-defense (Page 136). VanDyke counters that this ignores the corresponding burden on law-abiding citizens, who may need more than ten rounds in rare but critical self-defense scenarios (Page 138).
  • He cites the example of Ersie Joyner, who fired ten rounds defending himself against multiple assailants and was left vulnerable when his magazine was empty (Page 139). The majority’s focus on pauses benefiting victims or law enforcement overlooks the risk to armed defenders (Page 138).
  • Selective Use of Rarity:
  • The majority emphasizes the rarity of needing more than ten rounds in self-defense to minimize the ban’s burden (Page 136). However, VanDyke points out that mass shootings, the justification for the ban, are also statistically rare (Page 138, citing Duncan V, 19 F.4th at 1160). This inconsistent treatment biases the analysis against Second Amendment rights (Page 138).

2. Reintroducing Interest Balancing

Bruen explicitly rejected judicial interest balancing, stating that the Second Amendment is the “product of an interest balancing by the people” (Heller, 554 U.S. at 635, cited at Page 123). The dissents argue that the majority covertly reintroduces this discredited approach under the guise of historical analysis.

  • Pre- and Post-Bruen Continuity:
  • Judge Bumatay provides a table comparing the majority’s pre-Bruen (Duncan V) and post-Bruen language, showing striking similarities (Page 121). For example, both describe LCMs as exacerbating mass shooting harm and the ban as imposing a “minimal burden” (Page 121). This suggests the majority is repackaging its prior interest-balancing analysis to fit Bruen’s framework.
  • VanDyke argues that the majority “merges its balancing into its determination of whether the Second Amendment protects an individual’s conduct at all” (Page 123), effectively sidestepping Bruen’s prohibition on balancing.
  • Weighing Government Interests:
  • The majority justifies the ban by emphasizing California’s goal of preventing mass shootings, a “compelling” interest (Page 121, comparing Duncan V, 19 F.4th at 1111). This mirrors intermediate scrutiny, where courts assess whether a law is a “reasonable fit” for a government interest (Page 121).
  • VanDyke notes that the majority’s focus on the ban’s “minimal burden” and its justification (preventing “devastating harm”) replicates the structure of intermediate scrutiny, evaluating the law’s means against its ends (Page 136-137).
  • Lower Standard Than Intermediate Scrutiny:
  • VanDyke argues that the majority’s “lax historical balancing test” is “even easier for the government to satisfy than intermediate scrutiny” (Page 137). By requiring only a vague historical analogue (e.g., banning “especially dangerous” items) and minimizing the burden, the majority effectively lowers the government’s burden below what Bruen demands (Page 137).

3. Historical and Conceptual Errors

Beyond misapplying Bruen, the dissents identify broader issues with the majority’s reasoning.

  • Mischaracterizing LCMs’ Role:
  • The majority asserts that LCMs have “almost no utility” in self-defense but are devastating in mass shootings (Page 16). Bumatay and VanDyke argue that this is factually unsupported and ignores evidence that LCMs are commonly used in firearms for self-defense (Page 15, noting that half of magazines hold more than ten rounds).
  • VanDyke emphasizes that LCMs enhance a firearm’s effectiveness, just as other components (e.g., sights or grips) do, and excluding them based on “dangerousness” could justify banning any effective firearm component (Page 135).
  • Overstating Technological Change:
  • The majority claims that LCMs, combined with semi-automatic firearms, represent a “dramatic technological change” justifying a “nuanced” historical analysis (Page 131). VanDyke counters that the primary technological advance is the semi-automatic mechanism, not LCMs, and the majority’s logic could justify banning semi-automatic firearms altogether (Page 131-132, n.2).
  • This overgeneralization risks labeling all modern firearms as outside historical traditions, undermining Bruen’s assurance that the Second Amendment covers modern instruments (Page 24, citing Bruen, 597 U.S. at 28).
  • Ignoring Founding-Era Principles:
  • Bumatay argues that the majority fails to engage with the Founding-era understanding of the Second Amendment, which prioritized individual self-defense (Page 122). Historical regulations were narrow and targeted (e.g., restricting carry of specific weapons), not broad possession bans like California’s (Page 120).
  • The majority’s reliance on a vague tradition of regulating “especially dangerous” weapons lacks the specificity required by Bruen and risks swallowing the Second Amendment’s protections (Page 133).

4. Procedural and Ethical Concerns

The dissents raise procedural issues that further undermine the ruling’s legitimacy.

  • Lack of Statutory Jurisdiction:
  • Judge R. Nelson argues that the en banc court lacked statutory jurisdiction to hear this appeal, as the majority violated statutory procedures for en banc proceedings (Page 4). This procedural irregularity compounds the substantive errors, suggesting the court overstepped its authority (Page 4).
  • Majority’s Inconsistent Treatment of Extra-Record Evidence:
  • VanDyke criticizes the majority’s objection to his video dissent, which illustrates the conceptual flaws in the arms-accessory distinction, as introducing “facts outside the record” (Page 140-143). He notes that the majority itself relied on extra-record scientific studies in Mai v. United States (Page 144, citing 952 F.3d at 1117-18) without objection, revealing a double standard when rejecting Second Amendment claims (Page 144-145).
  • The majority’s focus on the video’s format (rather than its substance) is seen as a distraction from addressing the conceptual critique (Page 146).

5. Broader Implications for Second Amendment Jurisprudence

The dissents warn that the ruling sets a dangerous precedent for Second Amendment rights.

  • Eviscerating Bruen:
  • VanDyke argues that the majority’s “flexible” historical test “writes Bruen out of the United States Reports” in the Ninth Circuit (Page 134). By excusing the government from showing a “distinctly similar” historical regulation, the ruling undermines Bruen’s strict standard (Page 134, citing Bruen, 597 U.S. at 24).
  • The majority’s approach allows courts to uphold any firearm regulation by citing vague historical bans on “dangerous” items, effectively nullifying Second Amendment protections (Page 133-134).
  • Bias Against Second Amendment Rights:
  • VanDyke accuses the Ninth Circuit of maintaining an “undefeated record against the Second Amendment” (Page 147), consistently finding ways to uphold restrictions regardless of Supreme Court guidance. The ruling’s reliance on a “government-friendly” test reflects this bias (Page 147).
  • The majority’s selective weighting of rare events (mass shootings vs. self-defense needs) and its dismissal of burdens on law-abiding citizens demonstrate a predisposition to prioritize government interests (Page 138).
  • Real-World Consequences:
  • The ruling’s practical impact is to limit law-abiding citizens’ ability to defend themselves effectively, particularly in rare but life-threatening situations (Page 139, citing the Ersie Joyner incident). By protecting only the “jankiest” firearms, the majority undermines the Second Amendment’s purpose of ensuring effective self-defense (Page 147).

Conclusion

The Duncan v. Bonta ruling is criticized for faking adherence to Bruen while covertly reintroducing interest balancing, misinterpreting the Second Amendment’s scope, and diluting the historical tradition test. The majority’s arms-accessory distinction is conceptually flawed and lacks historical support, arbitrarily excluding LCMs from protection. Its historical analysis overgeneralizes analogues, lowering the government’s burden to a level inconsistent with Bruen. Procedural irregularities and inconsistent treatment of extra-record evidence further undermine the ruling’s legitimacy. The dissents warn that this decision not only misapplies Bruen but also sets a precedent that could erode Second Amendment protections by allowing broad firearm restrictions under vague historical pretexts.

Here are the links to the Duncan v. Bonta opinion and Judge VanDyke’s video dissent: