The Ninth Circuit Court of Appeals has a well-documented history of resistance to the Second Amendment’s individual rights framework, a pattern that began with Silveira v. Lockyer (2002) and persists despite Supreme Court interventions in District of Columbia v. Heller (2008), McDonald v. City of Chicago (2010), and New York State Rifle & Pistol Association v. Bruen (2022). This resistance is evident in a series of pre- and post-Bruen cases that showcase the court’s reluctance to fully embrace the Second Amendment’s protections, often through narrow interpretations or lenient standards of review. The ongoing Duncan v. Bonta case, with its en banc dissents exposing procedural gamesmanship, further underscores this trend. This article provides a comprehensive analysis of Silveira, the Supreme Court’s corrective rulings, the Ninth Circuit’s pre- and post-Bruen jurisprudence, and the procedural criticisms in Duncan, highlighting the court’s consistent skepticism toward Second Amendment claims.
In 2002, Silveira v. Lockyer challenged California’s Assault Weapons Control Act, which banned certain firearms deemed “assault weapons.” Plaintiffs argued that the ban violated their individual right to keep and bear arms. Judge Stephen Reinhardt, writing for the panel, adopted the “collective rights” theory, asserting that the Second Amendment protects only the states’ ability to maintain militias, not an individual’s right to possess firearms for self-defense. Reinhardt interpreted “the right of the people” as a state-centric privilege, dismissing personal gun ownership as outside the amendment’s scope. The court upheld California’s ban, establishing a precedent that shaped the Ninth Circuit’s approach for over a decade.
Reinhardt’s opinion relied on a selective historical narrative, ignoring Founding-era sources like the Federalist Papers, state constitutions, and James Madison’s writings, which framed the right to bear arms as an individual one tied to self-defense and resistance to tyranny. By emphasizing the militia clause, Silveira misconstrued the Second Amendment’s structure within the Bill of Rights, which protects individual freedoms. This ruling became a cornerstone for restrictive gun laws in the Ninth Circuit’s jurisdiction until the Supreme Court intervened.
In 2008, District of Columbia v. Heller rejected Silveira’s collective rights theory. In a 5-4 decision, Justice Antonin Scalia held that the Second Amendment protects an individual right to keep and bear arms for self-defense, unconnected to militia service. The Court’s textual and historical analysis clarified that the prefatory clause (“A well regulated Militia, being necessary to the security of a free State”) does not limit the operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). Citing English common law, state constitutions, and Founding-era writings, Scalia established that self-defense was a core purpose of the right. Heller invalidated Washington, D.C.’s handgun ban, rendering Silveira’s reasoning obsolete.
In 2010, McDonald v. City of Chicago extended Heller’s holding to state and local governments via the Fourteenth Amendment’s Due Process Clause. Justice Samuel Alito’s majority opinion reaffirmed the individual rights framework, striking down Chicago’s handgun ban. The Court emphasized that the Second Amendment is a fundamental right, deeply rooted in the nation’s history, and thus binding on the states. Heller and McDonald provided a clear mandate: the Second Amendment protects an individual’s right to possess firearms for self-defense, applicable to all levels of government.
The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen expanded the Second Amendment’s protections. The Court struck down New York’s “proper cause” requirement for concealed carry permits, holding that the amendment encompasses the right to bear arms in public for self-defense. Justice Clarence Thomas introduced a new test: gun regulations must be consistent with the Second Amendment’s “text” and the nation’s “historical tradition” of firearm regulation. Courts must assess whether a restriction has a historical analogue from the Founding era or Reconstruction, rejecting the “two-step” balancing tests (e.g., intermediate scrutiny) that lower courts, including the Ninth Circuit, had used to uphold restrictive laws.
Bruen directly challenged courts that had diluted Heller and McDonald by deferring to state policy preferences. By demanding rigorous historical analysis, it placed the burden on governments to justify regulations with evidence of analogous historical laws. For the Ninth Circuit, Bruen was a clear directive to abandon flexible standards and align with the individual rights framework.
Before Bruen, the Ninth Circuit issued several rulings that reflected reluctance to fully apply Heller and McDonald’s individual rights framework, often using intermediate scrutiny to uphold restrictive gun laws. These cases demonstrate the court’s tendency to narrow the Second Amendment’s protections:
These pre-Bruen cases reflect a pattern of judicial deference to state and local gun laws, often through lenient standards like intermediate scrutiny that allowed courts to balance public safety against constitutional rights. By confining Heller to in-home possession, the Ninth Circuit effectively limited the Second Amendment’s scope, treating it as a lesser right compared to freedoms like speech or religion, which the court has historically protected more vigorously.
After Bruen, the Ninth Circuit has faced pressure to adopt the text-and-history test, but its post-Bruen rulings show continued reluctance to fully embrace the Second Amendment’s protections. While some cases have been remanded or resolved in favor of gun rights, others reveal the court’s slow adjustment to Bruen’s mandates:
These post-Bruen cases show the Ninth Circuit grappling with the Supreme Court’s new standard but often opting for procedural delays, narrow rulings, or en banc interventions that preserve restrictive gun laws. The court’s hesitation contrasts with its quicker alignment with Supreme Court mandates in other areas, such as First Amendment cases, highlighting a selective approach to constitutional rights.
The Duncan v. Bonta case, challenging California’s ban on large-capacity magazines under California Penal Code § 32310, is a microcosm of the Ninth Circuit’s Second Amendment resistance, both substantively and procedurally. The case’s history and the en banc dissents—particularly in 2021, 2023, and 2025—reveal procedural tactics that critics argue are designed to uphold anti-gun policies.
The Duncan dissents, particularly by Judges Bumatay and VanDyke, accuse the Ninth Circuit of manipulating its procedures to avoid pro-Second Amendment outcomes. Key criticisms include:
These procedural tactics, the dissenters argue, reflect a broader strategy to control Second Amendment outcomes, particularly in a circuit with a history of skepticism toward gun rights.
The Ninth Circuit’s Second Amendment resistance is deeply tied to its ideological leanings. Based in San Francisco and overseeing progressive states like California and Hawaii, the court often reflects a judicial philosophy that prioritizes state regulatory power over individual gun rights. Silveira set this tone, with Reinhardt’s opinion framing the Second Amendment as outdated. Pre-Bruen cases like Peruta and Young continued this trend, as did post-Bruen cases like Teter and Baird, where delays and narrow rulings preserved restrictive laws.
The Duncan dissents explicitly call out this bias. VanDyke’s 2025 dissent accused the court of “anti-Second Amendment bias,” arguing that its procedural games are part of a “consistent tale” of defiance against the Supreme Court. This selective treatment—robustly protecting rights like free speech while limiting gun rights—undermines the principle that all constitutional protections deserve equal respect.
The Ninth Circuit’s Second Amendment jurisprudence impacts millions of gun owners across its nine-state jurisdiction. By upholding restrictive laws through questionable legal and procedural means, the court limits citizens’ ability to exercise their rights, affecting self-defense and other lawful purposes. Cases like Duncan (magazines), Teter (knives), and Baird (billy clubs) have far-reaching effects on the tools available for personal protection.
Moreover, the court’s resistance erodes judicial accountability. When a circuit manipulates procedures to avoid Supreme Court mandates, it undermines the rule of law. The Supreme Court’s repeated interventions—vacating Duncan in 2022, remanding Young—signal frustration with the Ninth Circuit’s approach.
The Ninth Circuit’s Second Amendment record, from Silveira to Duncan’s procedural maneuvers, reflects a pattern of resistance to the individual rights framework. To align with constitutional mandates, the court must:
The Supreme Court may need to issue further rulings targeting the Ninth Circuit’s missteps, such as Duncan’s procedural irregularities or Teter’s en banc vacatur. Structural reforms, like splitting the Ninth Circuit into smaller circuits, could reduce its influence and promote adherence to precedent. Until then, the Ninth Circuit’s Second Amendment cases will remain a contentious battleground, leaving gun owners navigating a landscape of restrictive laws at odds with their constitutional rights.
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