The California Rifle and Pistol Association (CRPA), the official state association of the National Rifle Association, has released an explainer for Californians who still have questions about the Duncan v. Becerra case and what exactly last week's stay of the decision by U.S. District Court Judge Roger T. Benitez means. Much of what is contained in the explainer will be old news to readers of Restricted Arms. However, several people have expressed concern on message boards and on Twitter that another provision of California law—the so-called "nuisance provision" would allow zealous anti-gun police to simply confiscate any of the new large-capacity magazines they find Californians using at a range.
And there’s this. Basically, any LCM is considered a nuisance and is subject to confiscation and destruction. https://t.co/SYEkc0ENnmhttps://t.co/EHgsTlI1Dn
— Write Winger (@RealWriteWinger) April 7, 2019
In a brief analysis, the CRPA lays out the reasons why they believe that section of California law—§32390, the nuisance provision—is unenforceable and unconstitutional.
While a law enforcement agency might, in fact, seize “large-capacity” magazines as a “nuisance” under California Penal Code section 32390, it is our attorneys’ view that there is no legal authority for it to do so—at least not for those who lawfully acquired their magazines. As an initial matter, our attorneys believe section 32390 is unenforceable against at least lawfully acquired “large capacity” magazines, regardless of this ruling, as it was never intended to apply to them. In 2010, the Legislature reorganized firearm laws with the intent of making them easier to understand by renumbering, breaking up, and rewording long, complicated statutes. All those alterations were expressly intended to make no substantive legal change to the existing statutes.
The predecessor of section 32390 was an ambiguous provision that, at most, applied only to “large capacity” magazines that were unlawfully made, imported, sold, or acquired, but not merely possessed; this is because that previous statute applied to a whole host of weapons whose possession was illegal, while the “large capacity” magazine statute only applied to acquisition of news ones. The legislative history for the original “large capacity” magazine statute expressly stated that it did not intend to affect lawfully possessed magazines. It would make no sense, nor would it likely pass constitutional muster under the Due Process Clause, to construe section 32390 as applying to the lawful possession of magazines.
In any event, even if our attorneys’ analysis of California Penal Code section 32390 is wrong, the ruling in the Duncan matter makes clear that it is unconstitutional and thus unenforceable. The notion that an item whose possession is protected by the Second Amendment can be seized by government provided there is no criminal penalty is absurd; particularly so if there is no compensation for it, because seizing a “large-capacity” magazine as a nuisance would still be an illegal taking under the ruling. The ruling itself leaves little doubt that it would not tolerate enforcement of section 32390. As stated by the court in the March 29, 2019, decision:
Casting a common sized firearm magazine able to hold more than 10 rounds as a nuisance, as a way around the Second Amendment, is like banning a book as a nuisance, as a way around the First Amendment. It conjures up images from Ray Bradbury’s novel, Fahrenheit 451, of firemen setting books on fire, or in this case policemen setting magazines on fire.
In the coming days, CRPA attorneys will be sending a letter to various law enforcement channels in the State explaining Section 32390 ‘s unenforceability. If you or anyone you know has a “large-capacity” magazine seized by law enforcement on the basis that it is a nuisance under Section 32390, we urge you to contact CRPA attorneys immediately by sending an email to [email protected] or by calling (562) 216-4444.
The CRPA and Restricted Arms encourage Californians to enjoy the use of their new LCMs and should an overzealous police officer attempt to take them as a nuisance item, you may have the opportunity to be part of the next lawsuit against a Restricted State.
