Federal Appeals Court Upholds Shutdown of California's Gun Magazine Ban

The overturned law would have required confiscating all magazines holding more than 10 rounds in California.


The 9th Circuit Court of Appeals, in a 2-1 panel decision, today upheld a lower court's shutting down of California's ban on gun magazines that hold more than 10 rounds, so-called "large capacity magazines" (LCMs).

The decision in the case of Duncan v. Becerra upheld a district court decision for summary judgment against the state of California from March 2019. The law barring LCMs as currently amended was a result of Proposition 63 in 2016.

Because of this lawsuit, initially filed just before the newest iteration of the LCM ban went into effect, the state has been legally enjoined from actually enforcing it. Now the 9th Circuit says it should never be able to. The law, if applied, would have demanded confiscation or destruction of all the tremendous number of previously legal LCMs in Californians' hands.

The District Court had decided there was "no genuine dispute of material fact that section 32310 violates the Second and Fifth Amendments of the United States Constitution, and ordered summary judgment for the [LCM] Owners" who were suing the state. The 9th Circuit Court of Appeals today agrees with that conclusion.

Judge Kenneth K. Lee wrote today's 9th Circuit panel decision, in which he was joined by Judge Consuelo Callahan. The judges concluded that barring citizens from owning and using more than half of the magazines for sale in the United States, ones that come along with a wide variety of commonly purchased handguns, strikes to the core of the Second Amendment right to own arms for self-defense, since the LCM ban barred possession of a self-defense tool commonly used for lawful purposes.

For some perspective, Judge Lee notes that "from 1990 to 2015, civilians possessed about 115 million LCMs out of a total of 230 million magazines in circulation….Today, LCMs may be lawfully possessed in 41 states and under federal law."

In buttressing the significance of the self-defense right the Second Amendment enshrines, Judge Lee discusses

Perhaps the most poignant and persuasive reminder of the fundamental right to self-defense…the denial of that right to Black Americans during tragic chapters of our country's history….Post-Civil War state legislation and the Black Codes in the South deprived newly freed slaves of their Second Amendment rights…Meanwhile, armed bands of ex-Confederates roamed the countryside forcibly disarming and terrorizing African Americans….Our country's history has shown that communities of color have a particularly compelling interest in exercising their Second Amendment rights. The Second Amendment provides one last line of defense for people of color when the state cannot — or will not — step in to protect them.

Women and "members of the lesbian, gay, bisexual, and transgender (LGBT) communities" are also singled out in the decision as often needing a vigorously defended right to bear arms. "The Second Amendment is not a relic relevant only during the era of Publius and parchments," Judge Lee declares. "It is a right that is exercised hundreds of times on any given day."

Our current strife-torn nation might make this point of Judge Lee's especially resonant: "Law-abiding citizens trapped in high-crime areas where
the law enforcement is overtaxed may defend themselves in their homes with a handgun outfitted with LCMs. And in incidents of mass chaos and unrest, law enforcement simply may be unable to protect the people, leaving them solely
responsible for their own safety in a seemingly Hobbesian world."

Relying on language and reasoning in the Supreme Court's dominant Second Amendment decision, 2008's Heller case, the judges found no reason to consider LCMs to be unusual, or to conclude the magazine ban is the sort of longstanding regulation on arms that should be granted deference as presumptively lawful. Some such laws would include, Judge Lee writes, those that bar "possession of firearms by felons and the mentally ill" and "prohibitions on carriage in sensitive locations, and conditions or qualifications on the commercial sale of firearms."

The judges granted the state interest the law supposedly furthered qualified as compelling. Still, the LCM ban was not appropriately "narrowly tailored" toward achieving that interest, since the magazine ban was not "the least restrictive means" toward that goal.

Despite not being guns, the panel finds that magazines are an essential element of a gun serving its self-defense function. "Firearms or magazines holding more than ten rounds have been in existence — and owned by American citizens — for centuries. Firearms with greater than ten round capacities existed even before our nation's founding, and the common use of LCMs for self-defense is apparent in our shared national history," Judge Lee writes, and the decision provides many pages of historical examples to prove this point.

The 9th Circuit's panel decision also explored the tricky and complicated question of what level of scutiny to apply to the law's impingement on Second Amendment rights, concluding that "strict" scrutiny was appropriate. As Judge Lee wrote, "If a challenged law does not strike at the core Second Amendment right or substantially burden that right, then intermediate scrutiny applies….Only where both questions are answered in the affirmative will strict scrutiny apply." And as above, they did find the LCM ban both strikes at the core of the right, and substantially burdens it.

Even if the 9th Circuit panel had been less restrictive in their scrutiny standard, Judge Lee said the law would have failed even "intermediate scrutiny" since "while the interests expressed by the state qualified as 'important,' the means chosen to advance those interests were not substantially related to their service." Judge Lee points out the state's attempts to defend the idea that the LCM law would in fact prevent important public harms were poorly argued and provided little hard evidence that any past actual harms would have been prevented by application of the law.

Judge Lee insists that "Our decision today is in keeping with Ninth Circuit
precedent. While we have not articulated a precise standard for what constitutes a substantial burden on core Second Amendment rights, we have consistently stated that a law that bans possession of a commonly used arm for self-defense — with no meaningful exception for law-abiding citizens — likely imposes a substantial burden on the Second Amendment." Judge Lee notes the 9th Circuit has seen fit to apply merely intermediate scrutiny to laws that merely barred localized sales of certain arms, or those that imposed waiting periods on purchases. But full-on possession bans with no grandfather clauses, Judge Lee thinks, should not stand in his Circuit.

The dissent from Judge Barbara Lynn insists, among other things, that other federal circuit courts considering similar issues upheld the laws, though Lee in his opinion mostly insists those other cases involved LCM restrictions short of total ban and confiscation.

Judge Lynn also relies on an earlier 9th Circuit case, Fyock v. Sunnyvale, upholding a District Court that did not overturn a California city's LCM ban and seemed to ratify the use of intermediate scrutiny in such cases. Judge Lee believes that in Fyock "We held only that the district court did not abuse its discretion by choosing intermediate scrutiny based on the limited record before it on a preliminary injunction appeal," a distinct issue from whether intermediate scrutiny is actually appropriate or justified.

While the specifics of some of the other LCM restriction cases Judge Lynn discusses are not the same in all respects as those in Duncan v. Becerra, her listing of them does indicate enough tumult among federal circuits to make it perhaps ripe for the Supreme Court to weigh in in the future on an appropriate case on the general question of LCM restrictions.


NEXT: Secret Service Asked CBP for Helicopters and Spy Planes in Response to White House Protesters

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  1. "Law-abiding citizens trapped in high-crime areas where
    the law enforcement is overtaxed may defend themselves in their homes with a handgun outfitted with LCMs. And in incidents of mass chaos and unrest, law enforcement simply may be unable to protect the people, leaving them solely
    responsible for their own safety in a seemingly Hobbesian world."

    Peaceful protests hammered a final coffin nail in any arguments against the second amendment for the next generation at least. Platinum lining of city blocks being burned down while CNN insisted everything was "mostly peaceful".

    1. Nobody NEEDS more than 10 rounds to survive a riot...

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    3. Now let’s work on California’s law that a citizen can only buy one gun per month.

      1. Not defending the law, but it only limits purchases of handguns (it's never been an issue for me personally, but I get that other people will have different needs). A better one to go after might be why they have to enforce the waiting periods on people who are already registered gun owners; someone who's going to do something impulsive would use what they have on hand (or go to the black market for an untraceable purchase), nobody is made safer by making someone wait to pick up their 9th firearm.

        If you felt the need, you could buy dozens of any kind of long guns (including stuff like M1A rifles and autoloading shotguns which are arguably more dangerous than an AR-15) in a single purchase. Since CA DOJ gets the serial numbers for each of them with the background check application (at least it's always on the same paperwork form that the sellers use to fill out the electronic application system), they'd know how many you're buying and might send some kind of LEO to check you out on suspicion that you might be straw-purchasing.

  2. Our betters winning.

  3. According to the AnyClip video Reason is so kind to have on the bottom right of my window, A U.S. appeals court in Philly say NJ can ban magazines greater than 10 rounds.

    1. Good, let's kick it up to SCOTUS.

      1. Be careful what you wish for. A few Biden SCOTUS appointments could wreck 2nd Amendment protections completely. There's no chance this makes it to SCOTUS anytime soon.

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        2. Harris appointments?

          They still have to convince most of America that a geriatric dementia patient who is an old white dude and the least black 'black woman' to ever hold office - who spent most of her career putting young black men in jail (often for lengthy periods) for petty crimes - are the answer to this summer's BLM and Antifa riots.

    2. NJ is way more totalitarian than CA when it comes to guns.

      1. Yes...light years more totalitarian. I have said that in many ways, The People's Republic of NJ is the bluest of the blue states.

        1. And has the highest per capita coronavirus death rate in the nation.

          Go Blue.

          1. Hey now! Harbaugh will have UM football back on top in no time.

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    3. From what I can find, the 3rd Circuit has taken the appeal on the NJ case but hasn't ruled yet; the most recent article I can find is from 6/17 saying that the court heard arguments in the most recent case, but every headline about a ruling is dated in 2018 and 2019 (so, not the case that went to appeal in 2020).

      This looks like the 9th only overturned the forcible confiscation of existing magazines and criminalizing simple posession, not the continuing prohibition on selling or manufacturing new ones in the state.

      If two circuits rule differently on the same issue, it seems like it'll force the hand of the USSC to finally take up a case on this and issue a ruling. Things could get interesting if Biden wins and RBG retires, then the court might take up some 2A cases while the Senate is fighting through the confirmation process for the replacement (which generally takes at least 2 months, and the GOP contingent in the Senate will be motivated to slow down by whatever means possible after recent battles) with the left/authoritarian wing down a vote. They might even issue some rulings that could preemptively cause a lot of trouble for a big chunk of the agenda Biden is claiming he'll push.

      1. Here is something saying the 3rd Circuit upholds the ban. But it's from 2018. I guess that says something about AnyClip.

      2. If the eight member scenario plays out, there'd be no real reason for SCOTUS to grant cert. If they did, it likely wouldn't change anything nationally. Ties keep the lower court ruling in place without creating precedent. We know there are four pro-2A votes (Thomas, Alito, Gorsuch, Kavanaugh). We also know there are four anti-2A votes (Ginsburg, Kagan, Sotomayor, Breyer). Roberts seems to vote whichever way avoids controversy.

        If Roberts could be relied upon to be pro-2A, the Court would have already ruled on another case. On the other hand, he's clearly not anti-2A. It seems pretty clear that he will continue to do his squishy middle routine as long as he's the centrist vote. It will take RGB being replaced by a Trump appointment or one of the Justices on the right being replaced by a Biden appointment to really change 2A jurisprudence one way or another.

        1. If Biden wins, RBG will retire. If the court were to take up a 2A case between her retirement and her being replaced by a Biden appointee (which could take a while if the GOP holds the majority in the Senate), the empty chair could very well lead to a 5-3 ruling, especially it it's a smaller issue like magazine limits or attempts to do things that would extend past 2A like criminalizing possession of "grandfathered" items or confiscation/forced "buybacks". It'd take a trump appointee (maybe) as a replacement for RBG to swing the balance to where they might be able to act on some of the bigger and more unconstitutional laws such as bans on open carrying which have been left in place and tolerated for decades already in some states.

          It might be hard for Biden to find a replacement for Ginsburg that's more hard-left than her, but he seems to have indicated that he'd try to get someone like Kagan/Sotomayor who's not only left-authoritarian but also believes that legislating from the bench is not only appropriate, but is possibly the true purpose of the judiciary.

      3. If two circuits rule differently on the same issue, it seems like it’ll force the hand of the USSC to finally take up a case on this and issue a ruling.

        You'd think that, but not necessarily. There is currently a circuit split on the issue may-issue license to carry, with the DC circuit finding it unconstitutional, but other circuits (including the 9th) upholding it. SCOTUS denied cert on the appeal from the 9th this year

        1. It looks like the circuit court refused the request from DC for the full en banc re-hearing of the case, and the City decided not to appeal to the USSC (they probably don't want to risk a re-play of Heller).

          Does the Supreme Court have the authority to create a case to sort out disagreements between circuits if there's none being brought to them? Otherwise, this seems like a case where the USSC hasn't yet faced the option to take a case that would allow them to sort out the disparity between circuits on the issue of "may issue" vs "must issue" (and if they did eliminate "must issue", I'd be part of the first wave in L.A. County to apply for a CCW just to make it easier to not risk getting jammed up for improper transport on the way to/from the range).

      4. Small but non-zero probability that there would be no need for RBG to retire, nor any need to wait two months. Once all the customary supermajority norms, waiting periods, and hearing procedures are tossed and we are down to bare constitutional requirements (and doing so is now almost within the Overton WIndow), then one party with a simple majority of both Houses and the presidency (plus some preparatory planning during the lame duck period) could add 100 justices to the Supreme Court in two days, January 19 and Jaunary 20, 2021. The longest part would be CJ Roberts administering 100 oaths of office on the evening of the 20th.

        The next day the new 100 justices vote to toss all the SC rules and customs, take up the cases of their choice, and issue their rulings in about 48 more hours.

        Not likely but theoretically possible if partisan hatred gets out of hand.

        1. "...Not likely but theoretically possible if partisan hatred gets out of hand."

          I believe that condition was met 11/10/16.

  4. Somehow, the judge went full SJW in his decision, and still got it right.

    1. I was wondering if it was intentional.

      1. Exactly what I was thinking.

    2. I am not sure I agree. Here is why. The Ninth circuit set the terms of debate, in a way: Strict scrutiny applies, because 2A is a core right of Americans. To me, this confirms the wisdom of the decision by Senator McConnell to focus on the judiciary. The Ninth circuit has changed. This opinion reflects the ideological changes underway on that bench.

      1. All enumerated rights are core rights.

  5. All gun control laws are unconstitutional as they violate the protections set forth in the 2nd Amendment and there is no government power to ban products or services.

    1. Quit interjecting logic and reason on the Reason site.
      Thank You.

    2. All Federal gun control laws are unconstitutional. Not state. Except as incorporated post civil war. Hence the relevance of the KKK.

  6. Michael Hihn has been a libertarian activist longer than most of us have been alive. And he says libertarians should demand comprehensive gun safety legislation including, but not limited to, bans on deadly military style assault weapons and large magazines.

    We desperately need Biden appointees if we're going to have a court system that rules the correct way on gun safety.


    1. Just curious- What do you want to do to us that you need us disarmed and pacified before you attempt it?

      1. OBL defers to The Rev on that matter. Something about stretching out a bodily orfice...

        1. Orifice. All I want for Christmas is an edit button [because I already have PLENTY of magazines...].

  7. Off to the en banc hearing...

    1. It's ridiculous that the 9th Circuit's "en banc" review does not include all of its judges. Split the 9th Circuit in two.

      1. Wow. I did not know that. They just can't be bothered, or what?

        Yeah, split em if there's too much work for their Circuit now.

      2. They have almost 3 circuits worth of en banc panels lol

    2. Did you guys watch any of that farce from the Flynn case?

      They had a 2 hour hearing about a motion to dismiss. It included hypotheticals about nuns with bags of cash. Nobody seemed to want to discuss the case at hand. A case which includes an admission by the government that they withheld evidence. Evidence that proves that the government investigated this guy and found no evidence for a crime, and was then ordered to manufacture a crime and prosecute him anyway. And then a judge who has decided that he wants to appoint his own prosecutor to pursue perjury charges against Flynn for pleading guilty to a crime he did not commit.

      No, this is seriously what is being argued in the courts (among the judges), instead of the question of "why are we not arresting the people who ordered the FBI to set someone up for arrest and prosecution even after they found no evidence of a crime?"

  8. Becerra needs to be bitch-slapped on a regular, perhaps daily schedule.

  9. Good, more chances to arm up, need more than 10 rounds to put down BLM, ICE, CBP and MAGA trash who show up in our neighborhoods

    1. Haha. You do that, tough guy!

    2. oddly true but it misses the point a smidge...your pistols and rifles are to protect you from ANY aggressor. we have yet to see the "MAGA trash" set up for looting as we have the hangers on to the BLM crowd. but it's certainly a potential event you'd want to be prepared for. that the whole point of having weapons for protection. we hope we never have to use them but will be glad if we need them and we have 'em handy. let's hope your hispanic guns league is for real and stands to protect the good neighbors while BLM seeks to drive the cops from the 'hood.

      remember, criminals prefer unarmed victims

    3. Good luck finding more than 10 rounds for sale in any popular caliber right now. For less than triple normal price anyway.

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  11. O/T - and so it begins:

    N.J. to have mostly mail-in voting in November election

    Ballots that lack postmarks because to postal error must be by 8 p.m. Thursday, Nov. 5 to be counted — 48 hours after in-person polls have closed.

    Plenty of time to create fraudulent ballots.

    Meanwhile, after allegations of voter fraud in the Paterson City Council race in May, state Attorney General Gurbir Grewal filed voting fraud charges against a city councilman and a councilman-elect.

    In Jersey? Nah.

    I’m pretty sure we have a higher probability of being hit by lightning than we do uncovering voter fraud.

    I'm sure of that too, Murphy. It'll exist, you just won't uncover it.

    Now, none of this really matters, because it's a foregone conclusion that NJ is going for Biden. But in a state a corrupt as this one, fraud is all but guaranteed.

    1. The judge in the Pennsylvania case has ordered the Trump group to produce evidence of voter fraud via mail. We'll soon see if they have any evidence or its just fear mongering.
      The issue in Paterson is one of proxy delivering of ballots. NJ requires a person to be designated in advance to deliver a ballot (and that person cannot deliver more than 3 ballots). The post office easily flagged the violators and they were caught. So technically it was an attempt at voter fraud, not actual fraud.

      BTW, why the assumption that the only voter fraud will be in favor of the Democratic candidates?

      As long as we get rid of the con-man in chief, who cares?

      1. Cook County (Chicago) emoyees brag about filling in ballots for team d. It's not unknown, nobody cares, because putting a (D) next to you name gives you immunity from scrutiny for some reason

        1. Willie Brown did the same regarding voters in SF, and when I posted a link, Tony claimed it was about local laws!

        2. Chicago: Vote early, and often.

      2. You can always tell what people's motivations are by their actions.

        Suddenly, team D wants mail in ballots. Everywhere. All at once.

        Team D has a huge pile of unregulated cash, sitting in non-profits funded by money raised by groups like BLM. Cash that they use for "grass roots organizing'

        Organizing like sending people around to collect ballots.

        They obviously think they have a big advantage when it comes to getting people on the ground to convert non-voters into voters. They believe their advantage with their connections to the big tech companies helps them better identify and reach sympathetic voters.

        Republicans think they also have the advantage in people willing to simply fill in ballots that are not being used.

    2. NJ was never going to vote for The Donald. You know that.

      The concern now is down ballot candidates. The People's Republic of NJ will become a truly one-party state. There may be 'token' Team R legislators here or there, but Team R is done for now.

      I am sad. Although I will vote against that son of a bitch Andy Kim, a Team D vote probably will not matter with all the horseshit that goes on here in People's Republic.

      The People's Republic of NJ is about to witness a miracle. The dead will be resurrected by the thousands, and miraculously vote.

      1. Christie may have had something to do with that.

        1. Christie did a lot of damage because of his attitude, particularly in his last 2 years in office. Guadano followed on by running an atrocious campaign.

      2. EXACTLY what XY said.

        I lived in Union City, NJ when Robert Menendez was elected, fist Mayor and then Congress-critter.

        Now granted, that was almost 30 yrs ago, but I know for an ABSOLUTE FACT that he was collecting votes from resident aliens, because I saw members of my extended family get registered on street corners and vote. All they needed was something with their name and address. A cable bill was sufficient at the time.

        Don't tell me voter fraud doesn't happen. I know it does.

        Now I live in Portlandia, (Yes, I went from the frying pan to the fire) and we get ballots in the mail. We have two that come with each ballot, that are for people who have not lived at this address for years. Do you think we're the only household that happens with?

      3. I've heard several people from NJ who think there's a real chance it goes for Trump.
        I think the Ds there are really worried, but the mail in (fraud) voting solves that

        1. Certain areas will. The urban centers won't.

    3. I saw an interesting bit about this the other day.

      Trump tweeted out "maybe we should postpone the election". You remember. It was the Hitler Apocalypse. The final proof that Trump is a dictator.

      Every news source covered it for most of a week. They all ridiculed Trump, proclaiming that it is illegal to postpone the election. They all explained that the constitution requires that the election be on November 3 this year.

      And then just the other day, the trap closes.

      Trump's campaign filed suit in Arizona over this very issue. Ballots without postmarks, collected after November 3 being counted. Clearly a violation of the constitution, which requires the election to be on November 3. And as the media helpfully pointed out, nationwide, postponing the election beyond November 3 is a fascist dictator tactic and will absolutely not be tolerated in the free states of the USA!

    4. why is this so damn confusing to everyone. simply start now to create special "vote mailboxes". the P.O. takes custody, maintains some sort of legit chain of custody, POSTMARKS ALL THAT WERE IN THEIR POSSESSION TIMELY and sends them off for counting. we have all of september, october and half of august...

      i'll take the risks of a paper ballot, which i can scrutinze, over an electronic scanned one anyday

  12. Did the California law carve out an exception for law enforcement or former law enforcement?
    If so, I (not that I have much influence) consider that a red flag. The police (former or otherwise) should have access only to weapons that (other) citizens have access to.

  13. so-called "large capacity magazines" (LCMs).

    Better known as "standard" or "normal" magazines to people who respect the constitution.


    1. Yeah. My Browning Hi-Power, first produced in 1935, has a 13 round magazine standard.

    2. Once upon a time the Army had 20-round magazines for the M-16. Then one day, they sent a memorandum to all unit armorers instructing them to destroy them since the Army was standardizing to the 30-round magazine (actual instruction was smash with a hammer and toss in the trash). Smaller magazines aren't "standard" or "normal". They were creations of anti-gun politicians.

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  15. "The Second Amendment is not a relic relevant only during the era of Publius and parchments," Judge Lee declares. "It is a right that is exercised hundreds of times on any given day."

    "Hundreds", eh?

    1. Every time one of your fellow denizens carries their pistol with them. So at least hundreds just for this website. (we have a lot of gun nuts running around here)

    2. “Hundreds”, eh?

      Actually, if one depends on some twenty surveys, including ones by the DOJ, it's more like a couple thousand times a day. Conservatively.

    3. The best use of arms is when someone sees that a person is armed, or even just believes they are armed, and makes the decision not to attack them.
      It is hard to quantify crimes prevented, but such events are not uncommon.

      The point of self defense is not that you get to kill or hurt people, but that being armed can act as a deterrent against those who would harm you or your family.

      1. That is also, by far, the most common use of firearms for self-defense.

  16. Ok, One More Time.....

    "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    Let me pull out the salient words for you:

    "Shall Not Be Infringed".

    Infringe: act so as to limit or undermine (something); encroach on.

    California law: You cannot have more than 10 bullets in your gun at one time. We are setting a limit on your weapon's capacity.

    Any questions?

    /drug commercial guy voice

    1. "Shall not be infringed" means you can't put fringe on them!

      /prog logic.

      1. No Admiralty guns here!

        But seriously, if the 2nd means anything at all, it means citizens can own the standard firearm of the US soldier, the M4 rifle. Which ironically fails modern gun control regs on two counts: the barrel's shorter than Nanny Gov wishes, and it's select-fire.

        1. Yeah, it really isn't complicated. The constitution is not ambiguous on this point.

          The counter argument of "but it is a really bad idea to let people have weapons of war" is an argument on policy. But the constitution closes off all avenues for limiting those weapons.

          The only sound solution is a constitutional amendment. If the courts were worth anything at all, that's what they would insist upon. It is better to have clearly written laws that are adhered to by all than to have laws that are open to interpretation - whether you call that interpretation "strict scrutiny" or "compelling government interest" or something else is irrelevant.

          There is no "unless we really think it is important" clause written in invisible ink there. "Shall not be infringed" is clear as can be. "Shall make no law" does not allow for any wiggle room. Were I elected president, I'd only allow judges on the court who agree with that proposition. Make the legislature do their job.

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  19. The Ninth Circuit recognized people will need high-capacity magazines when the time comes to storm the White House to drag Donald Trump out.

    1. will you be leading the charge? can you post the video?

      1. I'll be in the rear with the gear.

        1. REMF

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