California Magazine Ban in Trouble; California Exempts Retired Reserve Officers

In November, 2016, California voters passed a referendum that banned the possession of magazines with a capacity of more than 10 rounds. The ban was immediately challenged in the courts. An injunction against enforcement of the ban was put in effect by a federal district court. 

The court challenge claims the ban violates the U.S. Constitution on several grounds, including the Second Amendment. The case is one of several where state and local governments contend that magazines of over 10 rounds fall outside of protection afforded by the Second Amendment. 

The State of California appealed the injunction to the Ninth Circuit. A three judge panel of the Ninth Circuit upheld the federal Judge's authority to stop enforcement of the ban. From foxnews.com: July 17th

Second Amendment activists were given a surprise boost this week when the liberal Ninth Circuit Court of Appeals backed a lower court’s decision to suspend California’s ban on the possession of large magazines.

Activists, supported by the National Rifle Association, have argued that the state's ban on ownership of magazines holding 10 bullets or more is unconstitutional. They won a preliminary injunction by a San Diego district court last year, and a three-judge panel on the Ninth Circuit backed that injunction Tuesday.

Just a week earlier, the State of California had expanded the definition of who was exempt from the ban. The expansion included retired reserve officers that met certain time requirements. From ca.gov:

AB 1192, Lackey. Firearms: retired peace officers.

Existing law defines “honorably retired” for purposes of certain exceptions to the law involving the carrying of firearms by a retired peace officer.

The existing Safety For All Act of 2016, approved as an initiative statute at the November 8, 2016, statewide general election, makes it a crime for a person, commencing July 1, 2017, to possess a large-capacity magazine. Proposition 63 exempts from that prohibition the possession of a large-capacity magazine by honorably retired sworn peace officers. The existing act authorizes the Legislature to amend its provisions by statute approved by a 55% vote of each house if the amendments are consistent with, and further the intent of, the initiative statute. 

This bill would amend that act by redefining the definition of “honorably retired” to include a retired reserve officer who has met specified length of service requirements.

Such exemptions have been challenged under the equal protection clause of the fourteenth amendment. The argument is that retired officers are no longer state officials, therefore they do not fall under a special employment category.  That argument has not been upheld by the courts, at least so far.

Both arguments hinge on interpreting the laws under the legal standard of intermediate scrutiny. Intermediate scrutiny, as applied to the Second Amendment in the lower courts, has devolved to another name for "rational scrutiny".  The only standard for rational scrutiny is that the legislature provide some plausible sounding reason on which to base their passage of the law.

In effect, it gives the legislature the power to pass any law they wish, as long as the legislature gives a plausible sounding reason for the law. The reason does not have to actually be rational. It only needs to sound rational.

Here is an example. The legislature says banning magazines will reduce mass murders.  The legislature does not have to show this is true. It only has to give the reason, and the law is considered legitimate under the intermediate scrutiny/rational scrutiny standard.

Applying the intermediate scrutiny/rational scrutiny standard effectively guts the Second Amendment. Lower courts in Circuits hostile to the Second Amendment  have simply claimed that rifles and magazines are not covered by the Second Amendment, so they can apply lower levels of judicial scrutiny.

Under that theory, so many restrictions can be placed on the Second Amendment as to render it toothless.  Some of the restrictions already put in place include bans on magazine capacity, bans on firearms by appearance, arbitrary "safety standards", and bans on carrying firearms outside of the home. The Supreme Court, thus far, has simply refused to hear cases challenging these circuit court decisions.

Judge Kavanaugh, who is being considered as a replacement for retiring Justice Kennedy, has written that such rulings serve to undercut the interpretation of the Second Amendment as applied in the Heller decision. If Justice Kavanaugh is confirmed as the new Supreme Court justice, the Supreme Court is likely to consider the intermediate/rational scrutiny standard.  If the Court upholds the Heller decision, many such laws will be ruled as unconstitutional violations of the Second Amendment.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch