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September 9, 2020 - Herring Defends States’ Ability to Enact Gun Safety Measures

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Commonwealth of Virginia Office of the Attorney General

Mark Herring Attorney General

202 North Ninth Street Richmond, Virginia 23219


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~ Herring joins coalition of 18 state attorneys general in filing amicus brief defending California’s ban on large-capacity magazines ~

RICHMOND – Attorney General Mark R. Herring has joined a group of 18 state attorneys general to defend the ability of states like Virginia to enact reasonable gun safety laws that protect public safety and reduce the prevalence and lethality of gun violence. Attorney General Herring and his colleagues filed an amicus brief today in the Court of Appeals for the Ninth Circuit in Duncan v. Bacerra, a lawsuit filed by California gun owners and an NRA affiliate challenging California’s ban on high-capacity magazines that hold more than 10 rounds of ammunition.


“Virginia and every other state has the right and the responsibility to protect their communities by enacting commonsense gun safety measures that will save lives and reduce gun violence,” said Attorney General Herring. “This year, with a new General Assembly, Virginia was finally able to pass new, widely supported gun violence prevention laws like expanded background checks, a one-handgun-a-month law, a “red flag” law and more. I will continue to fight in court alongside my colleagues to make sure that states have the right to pass their own gun safety measures.”


Since 2000, California has prohibited the manufacture, importation, and sale of large-capacity magazines. In 2016, to further stem the proliferation of large-capacity magazines, the California legislature and the California electorate passed Proposition 63 banning the possession of magazines that hold more than 10 rounds of ammunition. Nine other states and the District of Columbia have also enacted laws banning large-capacity magazines. The constitutionality of those laws has been unanimously upheld by other federal courts of appeals.


The Duncan lawsuit was filed by a group of gun owners and the California Rifle & Pistol Association, a state affiliate of the National Rifle Association (NRA), after the passage of California’s Proposition 63. In April 2019, a lower court struck down California’s prohibition on large-capacity magazines. California appealed the ruling to the Ninth Circuit, and in August 2020, a divided three-judge panel affirmed the district court’s judgment. California sought en banc review, prompting the states’ amicus brief in support.


In the amicus brief, the states collectively urge the Ninth Circuit to rehear the case en banc and argue that California’s ban on large-capacity magazines is a reasonable and lawful restriction because:


  • The Second Amendment permits states to enact common-sense gun safety measures: The brief explains that states are entitled to adopt reasonable restrictions on firearms to protect public safety. Restricting access to large-capacity magazines is a reasonable restriction because it reduces firearm injuries and deaths without infringing individuals’ core Second Amendment right to self-defense.


  • States have a responsibility to prevent gun violence and protect public safety: The brief notes that states have primary responsibility for ensuring public safety. This includes a duty to reduce the likelihood that their citizens will fall victim to preventable firearm violence and to minimize fatalities and injuries when such violence occurs. Population density, economic conditions, and the strength of local law enforcement all vary widely across the country, and all may have an impact on crime and effective crime-fighting efforts. The brief notes that deciding how best to protect the safety of state residents is a question better suited to legislatures than courts.


  • Courts have allowed states to regulate large-capacity magazines to protect the public: Every other court of appeals has allowed states leeway to respond to gun violence within their borders by regulating large-capacity magazines.


In July 2019, Attorney General Herring and a coalition of 18 attorneys general filed an amicus brief in the Court of Appeals for the Ninth Circuit in Duncan v. Bacerra, arguing that the Second Amendment allows states to adopt gun safety laws.


Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia.


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