2nd Amendment Victory in California

April 1, 2019


Matthew Hoy

On Friday, U.S. District Court Judge Roger T. Benitez handed California gun owners their biggest 2nd Amendment victory since the three-judge panel decision in the Peruta case.

At issue in the case, Duncan v. Becerra, was was California Penal Code §32390, most recently amended in 2016 by Prop. 63. Previously the section had contained a grandfather clause for state residents who possessed magazines with a capacity of more than 10 rounds to keep them, provided they owned them before Jan. 1, 2000. Prop. 63 revoked the grandfather provision and directed those possessing affected magazines to either turn them into law enforcement, sell them to a FFL with a state Dangerous Weapons License, or remove them from the state. On its face, all of this was an illegal taking of property without just compensation in violation of the 5th Amendment. Hence the lawsuit.

California skepticism

Most cynical California 2nd Amendment advocates believed that, though the lawsuit brought by Michel & Associates included an attack on §32390 as a violation of the 2nd Amendment, the best chance for a favorable outcome was going to be the fact that the state of California was requiring residents to get rid of legally acquired property without any compensation. While the 2nd Amendment is disfavored in California, there is marginally more respect for the 5th.

This would have returned the "high-capacity" (really, these are standard capacity) magazine law to the state that it was before the passage of Prop. 63, allowing those who had long owned these larger magazines to keep them. The ban on new purchases (i.e. after Jan. 1, 2000) would stand.


In a historical and intellectual tour de force, the judge lays out the case for the right to have magazines that contain as many rounds as a person believes they need to defend themselves in their home.

In Heller, the U.S. Supreme Court provided a simple Second Amendment test in crystal clear language. It is a test that anyone can understand. The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual “in common use” “for lawful purposes like self-defense.” …. It 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. [Pg. 15, internal citations omitted]

Hey, militias are supposed to be able to use arms too.

In addition to their usefulness for self-defense in the home, of course, larger capacity magazines are also lawful arms from home with which militia members would report for duty. Consequently, possession of a larger capacity magazine is also categorically protected by the Second Amendment under United States v. Miller, 307 U.S. 174 (1939). “Miller and Heller recognized that militia members traditionally reported for duty carrying ‘the sorts of lawful weapons that they possessed at home,’ and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.’” [Pg 25]

Benitez also takes aim at why a 10-round magazine is OK, but an 11-round one is not.

California law presently permits the lethality of a gun with a 10-round magazine. In other words, a gun with an 11-round magazine or a 15-round magazine is apparently too lethal to be possessed by a law-abiding citizen. A gun with a 10-round magazine is not. Missing is a constitutionally-permissible standard for testing acceptable lethality. The Attorney General offers no objective standard. Heller sets out a commonality standard that can be applied to magazine hardware: is the size of the magazine “common”? If so, the size is constitutionally-protected.

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. [Pg. 21, footnotes omitted]

Everything we wanted

Friday's 86-page ruling gave 2nd Amendment supporters everything they wanted.

Magazines holding more than 10 rounds are “arms.” California Penal Code Section 32310, as amended by Proposition 63, burdens the core of the Second Amendment by criminalizing the acquisition and possession of these magazines that are commonly held by law-abiding citizens for defense of self, home, and state. The regulation is neither presumptively legal nor longstanding. The statute hits at the center of the Second Amendment and its burden is severe. When the simple test of Heller is applied, a test that persons of common intelligence can understand, the statute fails and is an unconstitutional abridgment. It criminalizes the otherwise lawful acquisition and possession of common magazines holding more than 10 rounds – magazines that law-abiding responsible citizens would choose for self-defense at home. It also fails the strict scrutiny test because the statute is not narrowly tailored – it is not tailored at all. Even under the more forgiving test of intermediate scrutiny, the statute fails because it is not a reasonable fit. It is not a reasonable fit because, among other things, it prohibits lawabiding concealed carry weapon permit holders and law-abiding U.S Armed Forces veterans from acquiring magazines and instead forces them to dispossess themselves of lawfully-owned gun magazines that hold more than 10 rounds or suffer criminal
penalties. Finally, subsections (c) and (d) of § 32310 impose an unconstitutional taking without compensation upon Plaintiffs and all those who lawfully possess magazines able to hold more than 10 rounds.

Accordingly, based upon the law and the evidence, upon which there is no genuine issue, and for the reasons stated in this opinion, Plaintiffs’ motion for summary judgment is granted.

California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined. [Pg. 84, Footnotes omitted]

The Fallout

Earlier today, Becerra's minions petitioned the court for a stay of its ruling, asking for a return to the status quo before the ruling was issued. Most of §32390 would still be enforced, except for the newer changes which eliminated the grandfather exception. The request is urgent, because out-of-state firearms suppliers have taken notice.

2nd Amendment Victory

Many other internet retailers are also shipping now-legal magazines to the golden state. It is unclear, if Benitez's ruling is eventually overturned, what the legal status of magazines imported to the state during this timeframe will be, but reports on gun enthusiast message boards indicates that there are many Californians who are willing to try their luck.

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