Open Source Defense

So, a judge struck down California’s magazine ban. Let’s break down the opinion.

April 01, 2019   |   13 minute read

In a ruling on Friday in Duncan v. Becerra, a federal judge struck down California’s ban on standard-capacity magazines. Now what?

We’ll cover three things: how to buy magazines in California right now, what’s next for the court case, and a detailed breakdown of the judge’s opinion.

How to buy magazines in California

Calguns has a comprehensive forum post showing where you can and can’t buy magazines online right now.

Pew Pew Tactical did a useful breakdown of the same.

What’s next legally

This was a district court ruling. That’s the first level in federal court. The next step is that California will appeal to the Ninth Circuit Court of Appeals. Circuit courts are the second level. Whichever side loses there will appeal to the Supreme Court, which is the third and final level. That process, from today through a Supreme Court ruling (or the Supreme Court declining to hear the appeal), can easily take 2+ years.

In the meantime, California will likely ask the judge to stay (suspend) his ruling while the appeal works its way through the system. The judge may or may not grant the stay, and his stay decision can itself be appealed to the Ninth Circuit.

Right now, possession of standard-capacity magazines is generally legal in California. (Note: that’s my lay understanding, but nothing in this post is legal advice.) But that could revert within days or weeks if the judge grants a stay. It could also remain legal for several years while the appeals shake out.

The only thing we can be fairly sure of is that magazine retailers will have a tidal wave of California orders this week.

Breakdown of the opinion: a sea change in gun cases

We focus on culture, not politics, at Open Source Defense, and that’s going to stay the same in this post. But from any perspective — cultural, political, legal — Judge Benitez’s opinion in this case is a barnburner. Most of the rest of this post will be excerpts from the opinion. Benitez comes in guns blazing, and we’ll analyze what that means for gun rights. Here we go.

The very first sentence of the 86-page opinion:

Individual liberty and freedom are not outmoded concepts.

The beginning of the second paragraph:

As two masked and armed men broke in, Susan Gonzalez was shot in the chest. She made it back to her bedroom and found her husband’s .22 caliber pistol. Wasting the first rounds on warning shots, she then emptied the single pistol at one attacker.

He spends the next several pages describing both real-world shootings and tactics, sounding like he’s reading straight from /r/dgu. He puts a button on it with this:

Few would say that a 100 or 50-round rifle magazine in the hands of a murderer is a good idea. Yet, the ‘solution’ for preventing a mass shooting exacts a high toll on the everyday freedom of ordinary law-abiding citizens. Many individual robberies, rapes, and shootings are not prevented by the State. Unless a law-abiding individual has a firearm for his or her own defense, the police typically arrive after it is too late. With rigor mortis setting in, they mark and bag the evidence, interview bystanders, and draw a chalk outline on the ground. But the victim, nevertheless, is dead, or raped, or robbed, or traumatized.

He is going off. Gun experts talk about this stuff all the time. But to have a federal judge say it in an opinion is a level of cultural victory that was a pipe dream back in the ’90s.

Taking a break to explain the nitty-gritty legal reasoning, Benitez writes,

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.” District of Columbia v. Heller, 554 U.S. 570, 624 (2008); Heller v. District of Columbia (“Heller II“), 670 F.3d 1244, 1271 (2011) (Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”). 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.

But he soon gets back to the first-principles argument:

Some say that the use of “large capacity magazines” increases the lethality of gun violence. They point out that when large capacity magazines are used in mass shootings, more shots are fired, more people are wounded, and more wounds are fatal than in other mass shootings. That may or may not be true. Certainly, a gun when abused is lethal. A gun holding more than 10 rounds is lethal to more people than a gun holding less than 10 rounds, but it is not constitutionally decisive. Nothing in the Second Amendment makes lethality a factor to consider because a gun’s lethality, or dangerousness, is assumed. The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.

Then, in a footnote:

Artificial limits will eventually lead to disarmament. It is an insidious plan to disarm the populace and it depends on for its success a subjective standard of “necessary” lethality. It does not take the imagination of Jules Verne to predict that if all magazines over 10 rounds are somehow eliminated from California, the next mass shooting will be accomplished with guns holding only 10 rounds. To reduce gun violence, the state will close the newly christened 10-round “loophole” and use it as a justification to outlaw magazines holding more than 7 rounds. The legislature will determine that no more than 7 rounds are “necessary.” Then the next mass shooting will be accomplished with guns holding 7 rounds. To reduce the new gun violence, the state will close the 7-round “loophole” and outlaw magazines holding more than 5 rounds determining that no more than 5 rounds is “necessary.” And so it goes, until the only lawful firearm law-abiding responsible citizens will be permitted to possess is a single-shot handgun. Or perhaps, one gun, but no ammunition. Or ammunition issued only to persons deemed trustworthy.

That footnote continues for two pages, describing examples of states that have followed exactly that pattern. I’m not citing this because of the argument itself, even though it’s an interesting one.

I’m citing this because it’s a mile-marker for gun rights to see a federal judge spend 86 pages shredding a magazine ban like this. Not just with technical legal arguments. With stuff like “It is an insidious plan to disarm the populace”. This is a sea change.

Benitez knows all the ways his ruling can be overturned. A judge writes an opinion like this to provide ammo for judges and lawyers in future cases. The more they can cite, the better they’ll do. Benitez went out of his way to give them 86 pages of ammo. That he did that is notable. That he did it like this is epochal.

He continues.

As policy, the State says a law-abiding, responsible person needs only 10 rounds. If you judge for yourself that you will need more than 10 rounds, however, the crime is yours. And, too bad if you complied with the law but needed 11 rounds to stop an attacker, or a group of attackers, or a mob. Now, you are dead. By living a law-abiding, responsible life, you have just become another “gun violence” statistic. And your statistic may be used to justify further restrictions on gun lethality for future law-abiding citizens.

“[T]oo bad…you are dead.” Damn, son. Not what we’re used to from judges in gun cases.

Later, starting on page 47, Benitez spends several pages laying into California for the shoddiness of the statistics it submitted as evidence — a survey by Mayors Against Illegal Guns and a dataset compiled by Mother Jones. He ends the excoriation like this:

This is federal court. The Attorney General has submitted two unofficial surveys to prove mass shootings are a problem made worse by firearm magazines holding more than 10 rounds. Do the surveys pass the Federal Rule of Evidence Rule 403 test for relevance? Yes. Are the surveys admissible under Federal Rule of Evidence Rule 802? No. They are double or triple hearsay. No foundation has been laid. No authentication attempted. Are they reliable? No. Are they anything more than a selected compilation of news articles – articles which are themselves inadmissible? No. Are the compilers likely to be biased? Yes.

Where are the actual police investigation reports? The Attorney General, California’s top law enforcement officer, has not submitted a single official police report of a shooting. Instead, the Attorney General relies on news articles and interest group surveys. Federal Constitutional rights are being subjected to litigation by inference about whether a pistol or a rifle in a news story might have had an ammunition magazine that held more than 10 rounds.

He continues, in a footnote,

This Court has observed that the quality of the evidence relied on by the State is remarkably thin. The State’s reliance and the State’s experts’ reliance on compilations such as the Mother Jones Magazine survey is an example. The survey is found in the Attorney General’s Opposition to Plaintiff’s Motion for Summary Judgment at Exhibit 37. It purports to be a survey of mass shootings. It does not indicate how its data is selected, or assembled, or tested. It is unaccompanied by any declaration as to its accuracy. It is probably not peer-reviewed. It has no widely-accepted reputation for objectivity. While it might be something that an expert considers in forming an admissible opinion, the survey by itself would be inadmissible under the normal rules of evidence.

Coming to the State’s argument that it’s trying to fight crime, Benitez does away with it in the same way that people have been arguing for years. But it hits differently when the person arguing is a federal judge.

The state has important interests. Public safety. Preventing gun violence. Keeping our police safe. At this level of generality, these interests can justify any law and virtually any restriction. Imagine the crimes that could be solved without the Fourth Amendment. The state could search for evidence of a crime anywhere on a whim. Without the First Amendment, the state could better police the internet. The state could protect its citizens from child pornography, sex trafficking, and radical terrorists. The state could limit internet use by its law-abiding citizens to, say, 10 hours a day or 10 websites a day. Perhaps it could put an end to Facebook cyberbullying.

The Attorney General articulates four important objectives to justify this new statutory bludgeon. They all swing at reducing “gun violence.” The bludgeon swings to knock large capacity magazines out of the hands of criminals. If the bludgeon does not work, then the criminals still clinging to their large capacity magazines will be thrown in jail while the magazines are destroyed as a public nuisance. The problem is the bludgeon indiscriminately hammers all that is in its path. Here, it also hammers magazines out of the hands of long time law-abiding citizens. It hammers the 15–round magazine as well as the 100–round drum. And it throws the law-abiding, self-defending citizen who continues to possess a magazine able to hold more than 10 rounds into the same jail cell as the criminal. Gun violence to carry out crime is horrendous and should be condemned by all and punished harshly. Defensive gun violence may be the only way a law-abiding citizen can avoid becoming a victim. The right to keep and bear arms is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.

Another passage where a familiar argument gets the stamp of approval from a federal judge: the grandfather-clause-to-“loophole”-to-confiscation cycle.

In the year 2000, California started its “experiment” in banning magazines holding more than 10-rounds. The statute included a grandfather clause permitting lawful owners of larger magazines to keep them. See Senate Committee Rpt (Perata) SB 23 (Mar. 1999), (“The purpose of this bill is to make all but the possession of ‘large-capacity magazines’ a crime punishable as an alternative misdemeanor/felony (‘wobbler’)”; “The bill would make it a crime to do anything with detachable large capacity magazines after January 1, 2000 – except possess and personally use them – punishable as a misdemeanor/felony.”; “One could still possess those magazines after January 1, 2000.”). Relying at least in part on the State’s representation, law-abiding citizens did not object. Time passed. Now, these still law-abiding owners of larger magazines are told that the grandfather clause is a dangerous “loophole” that needs closing. Section 2.12 of Proposition 63 declared, “Today, California law prohibits the manufacture, importation and sale of military-style, large capacity ammunition magazines, but does not prohibit the general public from possessing them. We should close that loophole. No one except trained law enforcement should be able to possess these dangerous ammunition magazines.” (Emphasis added.) Plaintiffs who have kept their own larger capacity magazines since 1999, and now face criminal sanctions for continuing to possess them, no doubt feel they have been misled or tricked by their lawmakers.

Wrapping up, Benitez lists every avenue for the magazine ban’s survival. And eliminates them one by one.

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 law-abiding 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.

This opinion is what it looks like when an argument starts to enter the mainstream. This case is one to watch. And Benitez’s opinion is going to be heavily cited in just about every gun case from now on.

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