Bench Memos

Law & the Courts

Judicial Winning: Ken Lee

President Trump applauds during a signing ceremony at the White House in Washington, D.C., August 4, 2020. (Jonathan Ernst/Reuters)

President Trump’s replacement of liberal judicial hero Stephen Reinhardt with Ken Lee, a constitutionalist judge, was a significant milestone in the Trump administration’s ideological balancing of the notoriously left-leaning U.S. Court of Appeals for the Ninth Circuit. Judge Lee has come to be known as one of the most principled members of the Ninth Circuit, authoring decisions anchored in the law rather than swayed by the passions of the day.

In a decision issued Friday in Duncan v. Becerra, a challenge to California’s recent ban on ownership of large-capacity magazines (LCMs), Judge Lee stood up for Second Amendment rights as he reminded California state officials that “even well-intentioned laws must pass constitutional muster.” To determine the constitutionality of California’s LCM ban, Judge Lee applied “strict scrutiny,” the most exacting standard of judicial review in constitutional law. This is truly significant. Judicial application of strict scrutiny in gun-control cases constructs a long fence for states seeking to do an end-run around the Second Amendment’s protections.

Writing for a 2-1 panel, Judge Lee acknowledged what everyday Americans already know: LCMs are common, not “unusual.” Indeed, half of all magazines in America would be banned under this law. Judge Lee also wrote compellingly of the importance of gun rights for women, minorities, LGBT Americans, “those who live in rural areas where the local sheriff may be miles away, law-abiding citizens trapped in high-crime areas, communities that distrust or depend less on law enforcement, and many more who rely on their firearms to protect themselves and their families.” And because the challenged law posed a substantial burden on the “core [Second Amendment] right of law-abiding citizens to defend hearth and home,” Judge Lee noted succinctly: “Strict scrutiny applies.”

Ultimately, “California’s near-categorical ban of LCMs” did not survive strict scrutiny. Upholding a lower court ruling that invalidated the Golden State’s blanket prohibition, Judge Lee held that this expansive law was “not narrowly tailored to achieve the compelling state interests it purports to serve.” But that’s not all. Judge Lee also wrote that he would have found the LCM ban unconstitutional under the less-rigorous standard of intermediate scrutiny, if the court had chosen to apply it.

This exceptionally well-written opinion is one of the most forceful judicial defenses in recent memory of the Second Amendment’s important place in America’s constitutional history — a welcome development at the Ninth Circuit. With his demonstration of deep respect for the fundamental right to self-defense enshrined in the Second Amendment, Judge Lee continues to shine.

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