Free Minds & Free Markets

Federal Judge Stays California Confiscation of Magazines Holding More than 10 Rounds

This confiscation, even beyond Second Amendment concerns, amounts to an unconstitutional taking of personal property.

Last year California voters passed Proposition 63, a measure that amounted to a mass confiscation of firearm magazines that can hold more than 10 rounds. The new rule was supposed to take effect on July 1, but at the last minute a judge delayed the crackdown while a suit to stop it proceeds.

Bill Wilt/FoterBill Wilt/FoterAn earlier law, passed in 2000, banned such products but grandfathered in any magazines that Californians already legally owned. The new law would have prohibited those as well, requiring everyone owning such magazines to get rid of them.

If they still had them after July 1, they'd be guilty of "a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." (Active or former law enforcement officers, as is so often the case, would be exempt from the law.)

Last week, in the case of Duncan v. Becerra, U.S. District Court Judge Roger T. Benitez granted a preliminary injunction on the part of the people and organizations suing to overturn the law. For now, California is legally bound not to enforce the expanded ban, awaiting a final resolution of the lawsuit.

Judge Benitez's reasoning? He starts by pointing out what a mess California's gun laws are in terms of a citizen's ability to understand how they interact to restrict his or her actions:

In California, the State has enacted, over the span of two decades, an incrementally more burdensome web of restrictions on the rights of law-abiding responsible gun owners to buy, borrow, acquire, modify, use, or possess ammunition magazines able to hold more than 10 rounds. The language used, the internally referenced provisions, the interplay among them, and the plethora of other gun regulations, have made the State's magazine laws difficult to understand for all but the most learned experts.

At a hearing before Benitez, the judge notes,

the attorney for the Attorney General, although well prepared, was not able to describe all of the various exceptions to the dispossession and criminalization components of § 32310. Who could blame her? The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law. Statutes must be sufficiently well-defined so that reasonably intelligent citizens can know what conduct is against the law.

Benitez believes that the plaintiffs are likely to win the case on the merits. His decision points out that 9th Circuit (in which this case is being heard) Second Amendment analysis tends to be more complicated than the relevant precedent in 2008's groundbreaking Heller case would indicate.

Heller says that commonly used firearms for home defense use cannot be utterly banned. "Under the simple Heller test," Benitez reasons, this California law is "highly suspect...because they broadly prohibit common pistol and rifle magazines used for lawful purposes....Magazines holding more than 10 rounds are useful for self-defense by law-abiding citizens. And they are common. Lawful in at least 43 states and under federal law, these magazines number in the millions."

Benitez also believes the ban in question does not provide a "reasonable fit" to any articulated goal of the state of California's:

The State's preliminary theoretical and empirical evidence is inconclusive. In fact, it would be reasonable to infer, based on the State's evidence, that a right to possess magazines that hold more than 10 rounds may promote self-defense—especially in the home'and would be ordinarily useful for a citizen's militia use. California must provide more than a rational basis to justify its sweeping ban on mere possession...

The government's evidence that the ban is well suited to a compelling state goal "often seems irrelevant," Benitez adds. It largely consists of random news stories involving guns causing harm; many do not even mention magazine size.

Even the most supposedly thorough empirical data the state brings forward do not, in the judge's read, support the state's belief that there is a reasonable fit between its goals and this magazine ban:

of the 92 mass killings occurring across the 50 states between 2013 and 2009 [in a Mayors Against Illegal Guns study used by the state in this case], only ten occurred in California. Of those ten, the criminalization and dispossession requirements of § 32310 would have had no effect on eight of the shootings, and only marginal good effects had it been in effect at the time of the remaining two shootings....

On this evidence, § 32310 is not a reasonable fit. It hardly fits at all. It appears on this record to be a haphazard solution likely to have no effect on an exceedingly rare problem, while at the same time burdening the constitutional rights of other California law-abiding responsible citizen-owners of gun magazines holding more than 10 rounds.

The state claims the ban is aimed at halting "gun violence," but as Benitez notes,

violent gun use is a constitutionally-protected means for law abiding citizens to protect themselves from criminals. The phrase "gun violence" may not be invoked as a talismanic incantation to justify any exercise of state power. Implicit in the concept of public safety is the right of law-abiding people to use firearms and the magazines that make them work to protect themselves, their families, their homes...[I]t would indeed be ironic if, in the name of public safety and reducing gun violence, statutes were permitted to subvert the public's Second Amendment rights—which may repel criminal gun violence and which ultimately ensure the safety of the Republic.

For those reasons and more, Benitez concludes that California's new magazine confiscation "hits close to the core of the Second Amendment and is more than a slight burden. When the simple test of Heller is applied, a test that persons of common intelligence can understand, the statute is adjudged an unconstitutional abridgment."

Benitez also concludes that this confiscation, even beyond Second Amendment concerns, amounts to an unconstitutional taking of personal property.

David Kopel at the Washington Post has a smart, detailed analysis of the decision's twists and turns.

Photo Credit: Bill Wilt/Foter

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  • Fist of Etiquette||

    The language used, the internally referenced provisions, the interplay among them, and the plethora of other gun regulations, have made the State's magazine laws difficult to understand for all but the most learned experts.

    Careful, Your Honor. You don't want to send us down that slippery slope. We'll be a land of lawlessness.

  • Don'tTreadOnMeChipper||

    Wait, whut?! Oh, and please start taking your meds again Hihn.

  • Wizard4169||

    Dammit, Hihn was actually showing signs of embracing humor, and then you had to go and trigger him again. Let us recall the glorious past when Hihn actually had something to say, and didn't just rave about how we were all agressing him.

  • John C. Randolph||

    If the Califascists want to steal the people's standard-capacity magazines, seems to me that the motherfuckers have to spring for their fair market value.


  • Rat on a train||

    Ban the market and there is no value.

  • Wizard4169||

    'kay, where's the upvote button? It's just a little difficult to define market value after you've abolished the market. Especially when you keep in mind that a truly free market includes the right not to sell at all.

  • Sevo||

    "Federal Judge Stays California Confiscation of Magazines Holding More than 10 Rounds"

    DiFi has the vapors!

  • Ragoftag||

    Then they become 'priceless'!

  • n00bdragon||

    I, for one, will sleep much safer at night knowing that all of California's mass-murderers-to-be will for some reason decide to obey the state's gun control laws. Now if only we could get them to follow its murder laws.

    Maybe we should just make killing people with guns double illegal. Surely, that will put a stop to gun violence forever once shooters realize they could go to jail for a very long time.

  • Johnimo||

    The little pussies quit enforcing the death penalty for murder. Public hangings where little kids can watch the living turn into the swinging dead, pissing on the ground, ..... now that's a deterrent to murder!

  • Rebel Scum||

    The Second Amendment protects what it SAYS it protects ... weapons in common use at the time

    I know your disingenuous, but give us a break. It says "arms", which means instruments intended for fighting. And are you suggesting that the founders were not aware of technological advance? Did they want us to be technologically Amish with regard to advancement in weaponry?

    Also, you are misrepresenting Scalia's argument. I've heard him speak on the matter and he is referring to "dangerous and unusual weapons" in the modern sense, not that there is a limit based on technological advancement on what arms may be beard.

    Original intent must be followed ... even when inconvenient.

    Indeed. You should try it.

    It's called liberty.

    A concept with which you are demonstrably unfamiliar.

  • ||

    Sorry, while Scalia's opinion is not perfect (due to getting Kennedy to sign on to it), its pretty decent. You should try readying it, because you are completely wrong about it.

  • SomeGuy||

    his isn't disingenuous he is a pathological liar and willfully dishonest. We have proven countless times he is 100% full of shit especially on the 2nd Amendment.

    History, federalist papers, basic logic, definition of the word arms and bear. Anyone reading this. Hihn is a complete idiot and please move along.

  • Rebel Scum||

    Mayors Against Illegal Guns

    I've never understood this name. I just presume they want all guns to be illegal.

    On this evidence, § 32310 is not a reasonable fit.

    Of course not. That's not the point.

    subvert the public's Second Amendment rights

    There it is. Disarmament is the point.

  • C. S. P. Schofield||

    "I've never understood this name. I just presume they want all guns to be illegal."

    It's fairly simple; like most of what the Progressive vermin say in public, it's a LIE. The Progressive Left noticed early that is they told the truth about their aims, the Common man (that they profess to love so much) avoided them wherever possible. So they lie. They are so accustomed to lying, in fact, that they lie unthriftily and ted to be fairly blatant about it. This is a lingering effect of their control of the traditional new media, which used to allow them to stifle any opposing voices. Now they can no longer lie without somebody pointing it out, but they are so intellectually flabby that they are surprised and outraged when called to account.

    God, but I'm tired of these stupid mammy-jammers.

  • JayWye||

    "murder" is the WRONGFUL killing of another person. (that's where "progressives" flunk out.)

    OTOH,there's "justifiable homicide",as in killing in self-defense or defense of another person/persons.

    AR-15s,semi-auto AK-47s,etc and their standard capacity magazines are today's modern MILITIA weapons. Thus they should be the MOST protected of arms under the Second Amendment.

    the Second Amendment of the Constitution is NOT ABOUT hunting or sporting.

    Constitutional attorney Stewart Rhodes will explain The Second Amendment for you.

    ..."The whole point of the Second Amendment is to preserve the military capacity of the American people - to preserve the ability of the people, who are the militia, to provide for their own security as individuals, as neighborhoods, towns, counties, and states, during any emergency, man-made or natural; to preserve the military capacity of the American people to resist tyranny and violations of their rights by oath breakers within government; and to preserve the military capacity of the people to defend the Constitution against all enemies, both foreign and domestic, including those oath breaking domestic enemies within government. "

    If you disagree with or don't like this,you live in the wrong country. you need to move somewhere else.
    This is a basic tenet of America. a core concept.

  • Longtobefree||

    "We also recognize another important limitation on the right to keep and carry arms. 'Miller' said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' ... . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"
    .... as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty..... But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

    If this is correct, then the only free speech (common at the time) protected by the first amendment is un-amplified spoken words, writing on parchment using a quill pen, and single sheets of hand pressed printing. So all of us need to be sure to get our posts approved by some liberal college professor, because of safe spaces.

    And is there such as a thing as a non-dangerous weapon?
    And what weapons were unlawful at the time??

    And yet people think Heller was a victory.

  • C. S. P. Schofield||

    Heller was a victory. Political victories are incremental, and often (on might say always, if one were careless) include trade-offs. One of my biggest frustrations these days is listening to/reading my fellow Conservative/Libertarian commenters bitch that one election, or one judicial decision hasn't brought about the New Age.

    The march of Gun Rights has been a long one, and has not been brought about by any one bill or court case. It has been going on since I first became aware of politics, back in the 1970's, when it was widely assumed by both sides of the gun issue that hand guns would be effectively banned on a Federal level before the end of the 1980's.


  • C. S. P. Schofield||

    My Liberal acquaintance (my in-laws are Liberals) keep asking me "isn't this enough?"of every loosening of gun laws, and I keep telling them "The Second Amendment was written to ensure that the common man would have easy legal access to military grade firearms. So, no."

    That scares the shit out of them. Then I say; "There may be a case to be made to gun control laws, but it isn't possible to make it to someone like me until you are prepared to admit that the Second Amendment means what we know from contemporary documents it was intended to mean. Propose a Constitutional Amendment to restrict gun ownership, and we can have an actual debate. Until then, you are scofflaws who wants State to be able to defy the limits imposed on it by the Constitution. And I am a great deal more frightened by that then I am by the commonness of firearms."

    Funny, but they tend to patronize me a goddamn sight less after that.

  • Karl Hungus||

    Heller was a victory.

    Heller was a victory if for no other reason than it affirmed an individual right to bear arms, which from what I understand was a precedent that had been sorely lacking. And you're right that we can't get too up in arms (!) that full and universal recognition of RKBA hasn't arrived in one fell swoop. Between

  • ||

    "Totally wrong." Yes you are.

  • ||

    Man you just love getting his opinion wrong. Scalia said that it protects arms that are in common use- at the time that was pistols and rifles. There was no such thing as a "hunting" rifle back then. They were all rifles, all either actual military rifles, or based on them. Because technology advances, rifles that are in common use today are AR15s and the like and pistols are Glocks.

    "And, as we learned in school, NO rights are absolute"

    No, but to restrict them requires incredibly rare reasons. Just like the free speech is only limited to actual, immediate incitement, gun rights should only be limited to actual, dangerous reasons like prisoners or violent felons.

  • JayWye||

    DUH,in CURRENT TIMES,militia are going to bring and use arms similar to and compatible with what the Regular military has in CURRENT use. SAME as they did back in 1775,the militia used arms similar to what the military used. (in fact,the colonists had BETTER arms,rifled muskets,more accurate than the British smoothbores)

    It's pure nonsense that the Second only covers 18th century arms like muskets. Not in this day and age.

  • JayWye||

    the Second Amendment of the Constitution is NOT ABOUT hunting or sporting.
    semi-auto,magazine-fed rifles such as the AR-15 and AK-47 are today's modern MILITIA weapons,and thus should be the most protected of firearms under the Second Amendment.

    Militiamen were expected to appear for muster bearing arms and ammo similar to and compatible with what the Regular military had in use AT THAT TIME.
    Since we "compromised" and restricted ownership of full-auto,true assault rifles,that leaves the semi-auto versions for civilian militia use.

    In US v Miller,SCOTUS asked if a short-barreled shotgun was a weapon that a militia would commonly use,implying that arms protected by the 2nd Amendment were arms a militia would use. AR-15's,M-16's and AK-47s would be ordinary militia arms,and "hi-capacity magazines" also would be protected.

    it's VERY clear the Founders INTENDED that civilians have "weapons of war",militia arms suitable for militia purposes,that includes combat.

  • Longtobefree||

    And of course, they were careful to specify "arms", not just firearms. Those old guys seemed to be aware that things change. And at the time, as well as now, edged weapons were popular, as they were 'assault weapons' not need reload time. So we get to have bayonets and tomahawks, as well as damn near anything capable of killing the 'enemy', as defined by the duly elected representatives of democracy. But NONE of these can be infringed.

  • TxJack 112||

    Reading insanity like this only makes me happier that I was born in and live in Texas. I have to wonder how all the supporters of these pointless laws would respond if they lived in this state. On Sept 1st, 2017, a recently signed law repealing our long outdated knife laws goes into effect. They are worried about a magazine of more than 10 rounds? Wonder what they would think of someone walking down a public street carrying a pistol and a bowie knife, which will be totally legal in Texas? Actually, if you choose, you can carry a sword, legally. This is the reason progressives hate Texas and so many Californians are moving here, we understand what individual liberty actually means and our state government supports it rather than attempting to constantly strip it away.


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