District Court Strikes Down California’s Magazine Ban, Feeding Frenzy Ensues
April 2, 2019
In a surprise move last week, District Judge Roger Benitez granted summary judgement favoring the plaintiffs in Duncan v. Becerra, a case challenging California’s ban on firearm magazines capable of holding more than ten rounds. The decision shocked gun owners throughout the nation, who often chalk California up as a “lost cause” in terms of gun rights. It has also led to something of a feeding frenzy among California gun owners, who hope to gobble up as many standard capacity magazines as possible ahead of the 9th Circuit of Appeals’ expected involvement with the case.
To reach his decision, Judge Benitez applied a strict reading of the Supreme Court’s 2008 Heller decision and touched on several key gun control talking points.
Heller’s simple test states that if firearms are commonly owned by law-abiding citizens for lawful purposes, they are protected by the Second Amendment. To this point, Benitez writes, “[i]t is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are “yes,” the test is over. The hardware is protected.” He goes on to state, “[m]illions of ammunition magazines able to hold more than 10 rounds are in common use… This is enough to decide that a magazine able to hold more than 10 rounds passes the Heller test and is protected by the Second Amendment.”
Magazines holding more than ten rounds are “in common use” as defined by Heller and upheld in Caetano. Benitez argues, “[m]agazines holding more than 10 rounds are used for self-defense by law-abiding citizens. And they are common.” Regarding the commonality of higher capacity magazines in California, the decision states, “Saying that large capacity 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.”
Lethality is not a determinant for constitutional protection. Benitez states, “Certainly, a gun when abused is lethal… A gun holding more than 10 rounds is lethal to more people than a gun holding less than 10 rounds… Nothing in the Second Amendment makes lethality a factor… It protects guns and every gun is dangerous.”
If the “too lethal” standard is followed to its logical conclusion, the government may dictate in the future that a magazine of eight rounds is too lethal. And after that, it may dictate that a gun with a magazine holding three rounds is too lethal since a person usually fires only 2.2 rounds in self-defense. This stepped-down approach may continue until the time comes when government declares that only guns holding a single round are sufficiently lacking in lethality that they are both “safe” to possess and powerful enough to provide a means of self-defense.
Heller’s accommodations for long-standing firearm prohibitions do not apply. Benitez found no legitimacy to Becerra’s claims that bans on magazines over certain capacities have sufficient tenure to pass this test. He points out that the first ban on magazines holding more than a specified number of rounds was implemented by New Jersey in 1990 and that the overwhelming majority of states impose no limit on magazine capacity.
Benitez concludes the body of his decision by discussing heightened scrutiny and whether or not various levels of judicial scrutiny apply to Duncan. His finding is that the magazine ban fails the basic Heller test (that standard capacity magazines are both common and used lawfully) and as such, violates the Second Amendment outright. Still, he endeavors to view the case through lenses of both intermediate and strict scrutiny, finding that the ban still violates both standards.
California Attorney General Xavier Becerra should be expected to appeal the decision and will likely petition the 9th Circuit to delay or cut short the legalization of higher capacity magazines in the state. Until then, gun owners and retailers have already initiated a sort of feeding frenzy, hoping to take advantage of this window to stock up on the previously banned components, which will serve both political and utilitarian purposes for buyers. Notable sellers catering to California customers include AIM Surplus, Beretta, Brownells, Palmetto State Armory, Primary Arms, Rainier Arms, and many more. At this point, most major companies who sell magazines appear to be on the California sales train.
Given the political tendencies of the 9th Circuit, there is a very good chance that this newfound freedom will be short-lived. Still, it is important that judges at all levels of the judiciary adhere to the plaintext guidelines set forth in Heller and further reinforced by McDonald and Caetano, as Judge Benitez has done here. Moreover, the sudden influx of standard magazines into California will further frustrate the state’s efforts to enforce this ban. This is definitely a case worth watching but for the moment, there are no magazine restrictions in California.
An information security professional by day and gun blogger by night, Nathan started his firearms journey at 16 years old as a collector of C&R rifles. These days, you’re likely to find him shooting something a bit more modern – and usually equipped with a suppressor – but his passion for firearms with military heritage has never waned. Over the last five years, Nathan has written about a variety of firearms topics, including Second Amendment politics and gun and gear reviews. When he isn’t shooting or writing, Nathan nerds out over computers, 3D printing, and Star Wars.