Californians going on magazine-buying spree

April 2, 2019


Matthew Hoy

In the wake of last Friday's ruling invalidating a California law that has banned importing magazines that hold more than 10 rounds for nearly two decades, it appears that many California gun owners are going on a buying spree.

Over at the message board, one of the main online gathering places for California gun owners, one member reported that an individual answering retailer Brownells customer service line disclosed that they had sold more than 350,000 magazines over the past day or two. Unlike some other retailers, Brownells didn't appear to open their system to Californians until sometime Monday, April 1. Other retailers began taking orders as early as March 30 and 31.

Another Calguns member has compiled a list of sites currently selling large capacity magazines to Californians here.

Right now, it is legal for Californians to buy high-capacity magazines

The order issued by Judge Roger T. Benitez is currently the law of the land. At the same time his opinion was published, the court clerk issued an order enforcing it. It is on this basis that many firearms retailers are shipping these magazines to California, and many Californians are reporting that they returning their neutered magazines to their free-state equivalency. The latter is accomplished by drilling out the pin holding the baseplate to what are known as 10/20 or 10/30 magazines (these are magazines which are outwardly sized to hold 20 or 30 rounds, but have had an insert placed in them to only hold 10 rounds) and removing the insert.

Again, as of right now, both of these actions are perfectly legal, but they may not be for long.

Request for stay of ruling filed Monday afternoon

Of course, California Attorney General Xavier Becerra (and anyone with two eyes) saw this coming. Becerra filed a request for a stay of Benitez's ruling Monday with the request that the law be effectively frozen where it was prior to the release of the judgement last week. That would mean that it would still be illegal to "import, acquire or manufacture" a magazine holding more than 10 rounds, but the injunction against enforcement of the law making "possession" of those magazines would also be in place—people who had so-called high-capacity magazines prior to Jan. 1, 2000, could still legally own them.

This afternoon, a very brief brief in opposition to the stay was filed by Michel & Associates with its main focus on protecting all those Californians buying magazines right now.

Plaintiffs oppose the State’s request for a temporary stay of the judgment while the Court considers the State’s Ex Parte Application to Stay Judgment Pending Appeal of this Court’s Order Granting Plaintiffs’ Motion for Summary Judgment. Plaintiffs understand the State’s concerns, but should the judgment be stayed immediately, even if only temporarily, countless otherwise law-abiding Californians who have already ordered LCMs in reliance on the Court's order but have not received them would unjustly be subjected to severe criminal penalties without notice. See Cal. Penal Code § 32310(a); see also Cal. Penal Code § 1170(h). Therefore, unless the Court can unequivocally protect those individuals in an order granting the State’s temporary stay request, that request should be denied.

Ultimate legality of magazine purchases unclear

In an interview Sunday on Tom Gresham's Gun Talk show, California Rifle & Pistol Association President Chuck Michel, who was also the lead counsel on the Duncan v. Becerra case cautioned that the ultimate legality of magazines acquired over the weekend or while Judge Benitez's order stands, is still in question. [Interview with Michel starts @22:45 and continues to the end]

While Michel is unsure of the legal status of high capacity magazines acquired over the past few days, the California Department of Justice appears to be of two minds as well.

In its memo requesting the stay, the CalDOJ states:

Second, absent a stay, the State will be irreparably injured as a matter of law. LCMs have been illegal to manufacture, import, keep or offer for sale, give, or lend since 2000; and as long as the Court’s decision remains in effect, individuals who have been prevented from acquiring LCMs for nearly twenty years will be able to lawfully acquire them. Indeed, out-of-state firearms dealers are already advertising to California residents that they may now purchase LCMs. See Decl. of John D. Echeverria in Supp. of Def.’s Ex Parte Appl. to Stay J. Pending Appeal (“Echeverria Decl.”), Ex. 1. Moreover, a stay pending appeal will protect prospective purchasers of LCMs because anyone who acquires an LCM during the appeal will be required to divest themselves of the LCMs if the possession restrictions at Section 32310(c) and (d) are ultimately sustained. In addition, the State suffers irreparable harm when a duly enacted law is enjoined from enforcement during an appeal if the law is ultimately sustained.

Here the CalDOJ seems to say that only if the plaintiff's 5th Amendment argument fails, then people who purchased large capacity magazines these past few days will be forced to give them up like everyone else. In its supplementary declaration, CalDOJ lawyer John D. Echeverria seems to suggest that high-capacity magazines purchased recently will be illegal if the 9th Circuit overturns Benitez's ruling.

Good cause exists for the ex parte relief requested. If the Court’s Judgment is reversed on appeal, absent a stay of the Judgment pending appeal, the State of California will be irreparably harmed by the influx of large-capacity magazines during the appeal. Attached hereto as Exhibit 1 is a true and correct copy of a social media post on by an out-of-state firearms retailer, indicating that it will accept orders for LCMs by California residents and expects an increase in order volume as a result. If Section 32310 is ultimately reinstated by the Ninth Circuit, those new LCMs will be rendered illegal under state law, and it will be difficult for the State to remove these new LCMs. A stay pending appeal will preserve the status quo as it existed prior to the entry of the Judgment. [emphasis added]

Note that Echeverria doesn't say that all LCMs (Large-Capacity Magazines) would be illegal, but that the new ones would be. Of course, if all of Section 32310 is reinstated, then all LCMs become illegal to possess because of Prop. 63's addendum to that section making "possession" illegal.

If only the "import, acquire, manufacture" portion of §32310 is reinstated, then this seems to suggest CalDOJ might go after California residents who acquired LCMs in good faith with the law as it is right now.

Whether they would be successful is a separate question, but it could cost a lot of money in attorneys fees to find out.

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