Scathing Injunction Ordered for California’s “Large-Capacity Magazine” Possession Ban

Although only a temporary victory, in the court case Duncan v. Bacerra (3:17-cv-1017-BEN), Federal Judge Roger Benitez issued an injunction on enforcement of California’s extension of its so-called “large-capacity magazine” (LCM) ban, heretofore otherwise set to go into effect 1 July 2017.  This particular statute, passed by public proposition in 2016, expands upon California’s existing unconstitutional ban on the manufacture and sale of LCMs by criminalizing their (non-violent) possession – even for law-abiding citizens who owned them well before this or the previous ban ever came into effect.

The plaintiffs claim the law is unconstitutional on outright Second Amendment grounds (as incorporated to the States via the Fourteenth Amendment) as well as under the Takings Clause of the Fifth Amendment.

The judge rightly recognized this law’s likely violation of the Constitution on all such grounds and correspondingly halted its enforcement while “a final determination is made on the merits of their constitutional claims.”

Select excerpts of his order follow (all emphases added unless otherwise noted).  For anyone who actually cares about the rule of Constitutional Law, in any context, this order is well worth reading in its entirety for its full contextual effect.

“The counties and California have chipped away at the Plaintiffs’ right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban.  Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining constitutionality.”

Too much complexity fails to give fair notice and violates due process.  “[A] penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differs as to its application violates the first essential of due process of law.”

The California matrix of gun control laws is among the harshest in the nation and are filled with criminal traps for people of common intelligence who desire to obey the law.  Statutes must be sufficiently well-defined so that reasonably intelligent citizens can know what conduct is against the law.

Ultimately, this case asks two questions: “Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation?  Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?  Because a final decision on the merits is likely to answer both questions “yes,” but a final decision will take too long to offer relief, and because the statute will soon visit irrevocable harm on Plaintiffs and all those similarly situated, a state-wide preliminary injunction is necessary and justified to maintain the status quo (emphasis in original).  Because Plaintiffs have demonstrated on this preliminary record a likelihood of success on the merits, a likelihood of irreparable harm, a balance of equities that tips in their favor, and that an injunction would be in the public interest, a preliminary injunction will issue.

In District of Columbia v. Heller (original), 554 US 570 (2008), The Supreme Court made absolutely clear that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” … The State of California’s desire to criminalize simple possession of a firearm magazine able to hold more than 10 rounds is precisely the type of policy choice that the Constitution takes off the table.

Second Amendment rights are not watered-down, second-class rights.  “[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” … The right to bear arms for a legal purpose is an inherent right pre-dating and transcending the Second Amendment.  “The right there specified is that of ‘bearing arms for a lawful purpose.’  This is not a right granted by the Constitution.  Neither is it in any manner dependent upon that instrument for its existence.

…Public safety interests may not eviscerate the Second Amendment.  “The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications.  All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.”

The Second Amendment protects firearms and the ammunition and magazines that enable them to fire.

Under the simple Heller test, [California’s] § 32310 (c) & (d) are highly suspect (original).

To say magazines are uncommon because they have been banned for so long is something of a tautology.  It cannot be used as constitutional support for further banning.  “A law’s existence can’t be the source of its own constitutional validity.”

Here, the Attorney General has submitted at this preliminary stage incomplete studies from unreliable sources upon which experts base speculative explanations and predictions.

This Court finds on the preliminary evidentiary record before it that the dispossession and criminalization component of § 32310 (c) & (d) is not a reasonable fit (original).

[The Attorney General] asserts that the substantial evidence demonstrating a reasonable fit can take other softer forms such as “history, consensus, and simple common sense,” as well as “correlation evidence” and even simply “intuition.” … But if this “evidence” were sufficient, all firearm restrictions except an outright ban on all firearms would survive review.  Yet, as the Second Circuit cautioned, “on intermediate scrutiny review, the state cannot ‘get away with shoddy data or reasoning.’  To survive intermediate scrutiny, the defendants must show ‘reasonable inferences based on substantial evidence’ that the statutes are substantially related to the government interest” (original).

The State’s preliminary theoretical and empirical evidence is inconclusive.  In fact, it would be reasonable to infer, based on the State’s evidence, that a right to possess magazines that hold more than 10 rounds may promote self-defense – especially in the home – and would be ordinarily useful for a citizen’s militia use (original).

Mother Jones magazine has rarely been mentioned by any court as reliable evidence.  It is fair to say that the magazine survey lacks some of the earmarks of a scientifically designed and unbiased collection of data.

Exhibit 59 tends to prove the opposite of a justification for § 32310 (c) & (d), i.e., it tends to prove there is no need to dispossess and criminalize law-abiding responsible citizens currently possessing magazines holding more than 10 rounds.

Exhibit 59, like the rest of the Attorney General’s anthology of evidence, does not demonstrate that the ban on possession of magazines holding any more than 10 rounds is a reasonable fit, at least at this preliminary stage of the proceedings.

Intermediate scrutiny requires the State to demonstrate a reasonable fit.  A reasonable fit cannot be just any fit.  This is not simply a policy decision by the State.  This affects a Constitutionally protected right.

[The Attorney General] asserts that “LCMs are used disproportionately in mass killings and in murders of police.”  … The Mayors Against Illegal Guns survey belies these assertions.

The criminalization of possession of magazines holding more than 10 rounds would have had no effect on mass killings by revolver.  It would have had no effect on pistols bought legally in California because they are sold with 10round magazines.  It would have had no effect on shootings where magazines holding more than 10 rounds were not used.

In the Santa Monica incident, the shooter brought multiple firearms, as happens to be the case in almost all “mass shootings.” … The murderer had a lengthy criminal history, according to the Mayors’ survey.  At the time of the mass shooting, the killer was on parole for assault with a deadly weapon.  As such, he was already prohibited from possessing any kind of gun (original).

To sum up, of the 92 mass killings occurring across the 50 states between 2013 and 2009, only ten occurred in California.  Of those ten, the criminalization and dispossession requirements of § 32310 would have had no effect on eight of the shootings, and only marginal good effects had it been in effect at the time of the remaining two shootings.  On this evidence, § 32310 is not a reasonable fit.  It hardly fits at all.  It appears on this record to be a haphazard solution likely to have no effect on an exceedingly rare problem, while at the same time burdening the constitutional rights of other California law-abiding, responsible citizen-owners of gun magazines holding more than 10 rounds.

Having examined the facts as reported by the Mayor’s survey for all of the mass shooting incidents from around the United States over the fairly recent five-year period, it appears that the vast majority of events are identified as not involving either assault-type rifles or large capacity magazines.  To reduce or eliminate such incidents requires some means other than § 32310’s dispossession and criminalization approach.

Of the 92 mass shooting incidents over the five years from 2009 to 2013, although millions of magazines holding more than 10 rounds are owned by citizens nationwide, according to the Mayors’ survey, only six incidents (original) involved a magazine holding more than 10 rounds.

It is hard to imagine that the [Santa Monica] shooter, having already evaded California law to acquire large capacity magazines, would have dispossessed himself of the illegally acquired large capacity magazines if the existing law had included the new Proposition 63 amendments to § 32310.

Some conclusions can be drawn from the Mayor’s survey submitted by the Attorney General. … In view of the large population of California and the five-year time period studies, it appears that the Prop 63 amendments to § 32310 aim to eliminate that which is an incredibly rare danger to public safety.  Moreover, based on this preliminary evidentiary record submitted by the Attorney General, § 32310 is a poor fit as a means to eliminate the types of mass shooting events experienced in California.  In other words, § 32310 appears to be a poor fit as a means for the State to achieve its four important objectives.

What is clear from the preliminary evidence presented is that individuals who intend to engage in mass gun violence typically make plans.  They use multiple weapons and come loaded with extra ammunitionThey pick the place and the time to do much harm before police can intervene.  Persons with violent intentions have used large capacity magazines, machine guns, hand grenades and pipe bombs, notwithstanding laws criminalizing their possession or use.  Trying to legislatively outlaw the commonly possessed weapon du jour (original) is like wearing flip flops on a slippery slope.  A downhill slide is not hard to foresee.

Tragically, when 30-round magazines are banned, attackers will use 15 or 17-round magazines.  If magazines holding more than 10 rounds are banned they will use multiple 10-round magazines.  If all semi-automatic weapons are banned they will use shotguns and revolvers.  All of these scenarios already occur.

Statutes disarming law-abiding responsible citizen gun owners reflect an opinion on gun policy.  Courts are not free to impose their own policy choices on sovereign states.  But as Heller (original) explains, the Second Amendment takes certain policy choices and removes them beyond the realm of debate.  Disarming California’s law-abiding citizenry is not a constitutionally-permissible policy choice.

…the data offered by the Attorney General is made up of anecdotal accounts, collected by biased entities, upon which educated surmises and tautological observations are framed.  A statute criminalizing the mere possession of an integral piece of a constitutionally protected firearm, cannot be justified on the basis of defective data or emotion-driven claims.

Citing a few news articles and little more, [Professor John J. Donahue] opines that, “a review of the resolution of mass shootings in the US suggests that bans on large capacity magazines can help save lives by forcing mass shooters to pause and reload ammunition.”  Ironically, Professor Donahue’s declaration was signed, and the preliminary injunction hearing in this case was held, one day before the shooting incident at the baseball field in Alexandria, Virginia.  There, a shooter targeted members of a Congressional baseball team firing up to 100 roundsNo one tried to tackle or disarm the shooter while he paused to reload.  Instead, it ultimately took two Capitol Police members who were already at the scene [and no doubt armed with LCMs themselves] to stop the shooter.

Likewise, the shooting at Fort Hood, Texas, involved a shooter using a FN “Five-SeveN” pistol which comes standard with a 10 or 20 round magazine.  The shooter fired some 220 rounds, meaning he would have had to stop and re-load a 20-round high capacity magazine ten times.  Yet no one, even on a military base, tried to tackle or disarm the shooter while he paused to reload.


The Attorney General’s own evidence casts doubt on the reliability of his experts’ opinions.

In the end, it is a false dichotomy upon which the Attorney General rests his evidentiary case.  The Attorney General argues that any magazine in criminal hands with more than 10 rounds is “unusually dangerous” to law-abiding citizens. … At the same time he (and his experts) declare that no good law-abiding citizens really needs (original) a gun magazine holding more than 10 rounds for self-defense.  As a purely public policy choice, a government may declare that firearms if any capacity are dangerous in the hands of criminals, a proposition with which this Court would certainly agree.  At the same time, it can also be the case that firearms with larger than 10-round magazines in the hands of law-abiding citizens makes every individual safer and the public as a whole safer.  Guns in the hands of criminals are dangerous; guns in the hands of law-abiding responsible citizens ameliorate that dangerThe Second Amendment takes the policy choice away from state government.

[Proposition 63] declare, “No one except trained law enforcement should be able to possess these dangerous magazines” (emphasis added in original).  The rationale is anathema to the United States Constitution’s Bill of Rights guarantee of a right to keep and bear arms.  It is a right naturally possessed by regular, law-abiding responsible citizens, whom are neither reliant upon, nor subservient to, a privileged powerful, professional police state.

Gun violence to carry out crime is horrendous and should be condemned by all.  Defensive gun violence may be the only way a law-abiding citizen can avoid becoming a victim.  Put differently, violent gun use is a constitutionally-protected means for law-abiding citizens to protect themselves from criminalsThe phrase “gun violence” may not be invoked as a talismanic incantation to justify any exercise of state power.  Implicit in the concept of public safety is the right of law-abiding people to use firearms and the magazines that make them work to protect themselves, their families, their homes, and their state against all armed enemies, foreign and domestic.  To borrow a phrase, it would indeed be ironic if, in the name of public safety and reducing gun violence, statutes were permitted to subvert the public’s Second Amendment rights – which may repel criminal gun violence and which ultimately ensure the safety of the Republic.

“The right to bear arms enables one to possess not only the means to defend oneself but also the self-confidence – and psychic comfort – that comes with knowing one could protect oneself if necessary.”

The public interest favors the exercise of Second Amendment rights by law-abiding citizens.  And it is always in the public interest to prevent the violation of a person’s constitutional rights.

The balance of equities and the public interest merge when a likely constitutionally infringing statute is preliminarily enjoined to maintain the status quo (original).  That is the case here.

Supreme Court precedent casts doubt on the State’s theory that an exercise of the police power cannot constitute physical takings. … Murr [v. Wisconsin] (original) notes that almost a century ago, the Court held that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”

Whatever stick of ownership is left in the magazine-owner’s “bundle of sticks,” it is the short stick. … Here, California will deprive Plaintiffs not just of the use (original) of their property, but of possession (original), one of the most essential sticks in the bundle of property rights.

Plaintiffs have demonstrated a likelihood of success on the merits of their governmental takings claim.  Without compensation, Plaintiffs will be irreparably harmed as they will no longer be able to retrieve or replace their “large” capacity magazines as long as they reside in California.

This latest incremental incursion into solving the “gun violence” problem is a reflexively simple solution.  But as H. L. Mencken wrote, “There is always a well-known solution to every human problem – neat, plausible, and wrong.”

The regulation is neither presumptively legal nor longstanding.  The statute hits close to the core of the Second Amendment and is more than a slight burden.  When the simple test of Heller (original), a test that persons of common intelligence can understand, the statute is adjudged an unconstitutional abridgement.  Even under the more forgiving test of intermediate scrutiny, the statute is not likely to be a reasonable fit.

…just as the Court is mindful that a majority of California voters approved Proposition 63, and that the government has a legitimate interest in protecting the public from gun violence, it is equally mindful that the Constitution is a shield from the tyranny of the majority.


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