On 29 March, 2019, Judge Roger T. Benitez granted a motion for summary judgement against California Attorney General Xavier Becerra in the case of Duncan v. Becerra.
California's Byzantine regulations and bans on firearms magazines of over 10 round capacity were ruled unconstitutional under the Second and Fourteenth Amendments of the United States Constitution.
I have read the decision by Judge Benitez. It is well worth reading. At 86 pages, many will not take the time and energy to read the densely argued document.
Below, I have transcribed my choice of the jewels of this masterfully reasoned and written order. The selections are my own; others may disagree. They are in order, as found in the court document. I list the pages as an aid to others. Many will recognize the cogent arguments put forward by the Honorable Roger T. Benitez. They have been made by Second Amendment supporters for decades.
Judge Benitez first shows how the California magazine ban fails the simple and obvious test of constitutionality under the Heller decision.
Page 1: Individual liberty and freedom are not out moded concepts.“The judiciary is –and is often the only –protector of individual rights that are at the heart of our democracy.” --Senator Ted Kennedy, Senate Hearing on the Nomination of Robert Bork, 1987.
Page 5: As evidenced by California’s own crime statistics, the need to protect one’s self and family from criminals in one’s home has not abated no matter how hard they try. Law enforcement cannot protect everyone. “A police force in a free state cannot provide everyone with bodyguards. Indeed, while some think guns cause violent crime, others think that wide-spread possession of guns on balance reduces violent crime. None of these policy arguments on either side affects what the Second Amendment says, that our Constitution protects ‘the right of the people to keep and bear Arms.’” Silveira v. Lockyer, 328 F.3d 567, 588 (9th Cir. 2003) (Kleinfeld, J., dissenting from denial of rehearing en banc). However, California citizens, like United States citizens everywhere, enjoy the right to defend themselves with a firearm, if they so choose. To protect the home and hearth, citizens most often choose a handgun, while some choose rifles or shotguns.
Page 6: Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights. “An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity.”
Page 8: The Second Amendment protects the would-be American victim’s freedom and liberty to take matters into one’s own hands and protect one’s self and family until help arrives.
Page 13: According to the U.S. Supreme Court’s reasoning, acquiring, possessing,or storing a commonly-owned 15-round magazine at home for self-defense is protected at the core of the Second Amendment.
Page 14: Today, self-protection is most important. In the future, the common defense may once again be most important. Constitutional rights stand through time holding fast through the ebb and flow of current controversy. Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights as bad policy. Bad political ideas cannot be stopped by criminalizing bad political speech. Crime waves cannot be broken with warrantless searches and unreasonable seizures. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California’s large-capacity magazine law.
Page 15: Millions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense. This is enough to decide that a magazine able to hold more than 10 rounds passes the Heller test and is protected by the Second Amendment. The simple test applies because a magazine is an essential mechanical part of a firearm. The size limit directly impairs one’s ability to defend one’s self.
Page 16: Neither magazines, nor rounds of ammunition, nor triggers, nor barrels are specifically mentioned in the Second Amendment. Neither are they mentioned in Heller. But without a right to keep and bear triggers, or barrels, or ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless.
Page 20: To the extent that magazines holding more than 10 rounds may be less common within California, it would likely be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. Saying that large capacity magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning.
Page 21: 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.
Page 24: California’s law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny.
Page 26: In addition to their usefulness for self-defense in the home, of course, larger capacity magazines are also lawful arms from home with which militia members would report for duty. Consequently, possession of a larger capacity magazine is also categorically protected by the Second Amendment under United States v. Miller,307 U.S. 174 (1939). “Miller and Heller recognized that militia members traditionally reported for duty carrying ‘the sorts of lawful weapons that they possessed at home,’ and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.’” Caetano v. Massachusetts, 136 S. Ct. 1027, 1032 (2016) (Alito, J., concurring) (citations omitted).
Page 27: To sum up, then, while detachable firearm magazines have been common for a century, government regulation of the size of a magazine is a recent phenomenon and still unregulated in four-fifths of the states. The record is empty of the persuasive historical evidence needed to place a magazine ban outside the ambit of the Second Amendment. Thus, it can be seen that California’s prohibition on detachable ammunition magazines larger than 10 rounds is a type of prohibition that has not been historically accommodated by the Second Amendment.
Page 33: Moreover, there is no longstanding historically-accepted prohibition on firearms according to their “firing-capacity” except in the case of automatic fire machine guns. On the other hand, there is an indication that founding-era state regulations, rather than restricting ammunition possession, mandated citizens of militia age to equip themselves with ready ammunition in amounts of at least 20 rounds.
Page 35: The ban on magazines that hold more than 10 rounds amounts to a prohibition on an entire class of “arms” that is overwhelmingly chosen by American citizens for the lawful purpose of self-defense. The prohibition extends to one’s home where the need to defend self, family, and property is most acute. And like the ban struck down in Heller, the California ban threatens citizens, not with a minor fine, but a substantial criminal penalty.Next, Judge Benitez shows how, even under the Ninth Circuit's convoluted "Tripartite Binary Test with a Sliding Scale and Reasonable Fit" the California ban still fails miserably.
Page 39: But describing as minor, the burden on responsible, law-abiding citizens who may not possess a 15-round magazine for self-defense because there are other arms permitted with 10 or fewer rounds, is like saying that when government closes a Mormon church it is a minor burden because next door there is a Baptist church or a Hindu temple. Indeed, Heller itself rejected this mode of reasoning: “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e.,long guns) is allowed.”
Page 40: When thousands of people are rioting, as happened in Los Angeles in 1992, or more recently with Antifa members in Berkeley in 2017, a 10-round limit for self-defense is a severe burden. When a group of armed burglars break into a citizen’s home at night, and the homeowner in pajamas must choose between using their left hand to grab either a telephone, a flashlight, or an extra 10-round magazine, the burden is severe. When one is far from help in a sparsely populated part of the state, and law enforcement may not be able to respond in a timely manner, the burden of a 10-round limit is severe. When a major earthquake causes power outages, gas and water line ruptures, collapsed bridges and buildings, and chaos, the burden of a 10-round magazine limit is severe. When food distribution channels are disrupted and sustenance becomes scarce while criminals run rampant, the burden of a 10-round magazine limit is severe.
Page 43: The State has not offered a compelling interest for the ban, arguing that intermediate scrutiny should be the test. If preventing mass shootings is the state’s interest, it is not at all clear that it would be compelling since such events are exceedingly rare. If the state’s interest is in forcing a “pause” during a mass shooting for a shooter to be apprehended, those events are even more rare.
Page 46: The State’s theoretical and empirical evidence is not persuasive. Why 10 rounds as a limit? The State has no answer. Why is there no thought given to possession in and around a home? It is inconclusive at best. In fact, it is reasonable to infer, based on the State’s own evidence, that a right to possess magazines that hold more than 10 rounds may promote self-defense –especially in the home –as well as being ordinarily useful for a citizen’s militia use. California must provide more than a rational basis to justify its sweeping ban.
Page 51: To summarize, the 36-year survey of mass shootings by Mother Jones magazine put forth by the AG as evidence of the State’s need for § 32310, undercuts its own argument. The AG’s evidence demonstrates that mass shootings in California are rare, and its criminalization of large capacity magazine acquisition and possession has had no effect on reducing the number of shots a perpetrator can fire.The only effect of § 32310 is to make criminals of California’s 39 million law-abiding citizens who want to have ready for their self-defense a firearm with more than 10 rounds.
Page 59: No case has held that intermediate scrutiny would permit a state to impinge even slightly on the Second Amendment right by employing a known failed experiment. Congress tried for a decade the nationwide experiment of prohibiting large capacity magazines. It failed. California has continued the failed experiment for another decade and now suggests that it may continue to do so ad infinitum without demonstrating success. That makes no sense.
Page 60: The “fit” of § 32310 is, at best, ungainly and very loose. That is all that it takes to conclude that the statute is unconstitutional. The fit is like that of a father’s long raincoat on a little girl for Halloween. The problem of mass shootings is very small. The state’s “solution” is a triple extra-large and its untailored drape covers all the law-abiding and responsible of its 39 million citizens.
Page 61: A reasonable fit to protect citizens and law enforcement from gun violence and crime, in a state with numerous military bases and service men and service women, would surely permit the honorably discharged member of the U.S. Armed Forces who has lawfully maintained a magazine holding more than 10 rounds for more than twenty years to continue to keep and use his or her magazine. These citizens are perhaps the best among us. They have volunteered to serve and have served and sacrificed to protect our country. They have been specially trained to expertly use firearms in a conflict. They have proven their good citizenship by years of lawfully keeping firearms as civilians. What possibly better citizen candidates to protect the public against violent gun-toting criminals.
Page 62: Similarly, a reasonable fit would surely make an exception for a Department of Justice-vetted, privately-trained,citizen to whom the local sheriff has granted a permit to carry a concealed weapon, and who owns a weapon with a magazine holding more than 10 rounds. California’s statute does not except such proven, law-abiding, trustworthy, gun-owning individuals. Quite the opposite. Under the statute, all these individuals will be subject to criminal prosecution, should they not dispossess themselves of magazines holding more than 10 rounds.
Page 62: Perhaps the irony of § 32310 escapes notice. The reason for the adoption of the Second Amendment was to protect the citizens of the new nation from the power of an oppressive state. The anti-federalists were worried about the risk of oppression by a standing army. The colonies had witnessed the standing army of England marching through Lexington to Concord, Massachusetts, on a mission to seize the arms and gunpowder of the militia and the Minutemen—an attack that ignited the Revolutionary war. With Colonists still hurting from the wounds of war, the Second Amendment guaranteed the rights of new American citizens to protect themselves from oppressors foreign and domestic. So, now it is ironic that the State whittles away at the right of its citizens to defend themselves from the possible oppression of their State.
Page 64: Lawful arms do not become unprotected merely because they resemble unlawful arms. “The Government’s proposed prophylaxis –to protect against the violations of the few, we must burden the constitutional rights of the many –turns the Second Amendment on its head. Our Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government.” Mance v. Sessions, 896 F.3d 390, 405 (5thCir. 2018) (Ho, J.,dissenting from denial of rehearing en banc), pet’n for cert. filed(Nov. 21, 2018).
Page 66: Kolbe concluded that large capacity magazines were beyond the protection of the Second Amendment. Id.at 137. The court reached that conclusion based on the thought that such magazines are “most useful” in military service. Id. That large capacity magazines are useful in military service, there is no doubt. But the fact that they may be useful, or even “most useful,” for military purposes does not nullify their usefulness for law-abiding responsible citizens. It is the fact that they are commonly-possessed by these citizens for lawful purposes that places them directly beneath the umbrella of the Second Amendment. Kolbe’s decision that large capacity magazines are outside the ambit of the Second Amendment is an outlier and unpersuasive. Beyond this, this Court is unpersuaded by Kolbe’s interpretation of Miller finding that weapons most useful for military service are not protected. The dissenting Kolbe judges persuasively pointed out that the approach turns Supreme Court precedent upside down. Id.at 156-57 (Traxler, Niemeyer, Shedd, and Agee, Js., dissenting) (“Under [that] analysis, a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service—undoubtedly a weapon of war—and therefore not protected by the Second Amendment. This analysis turns Heller on its head.”).
Page 72: Even safer may be a large capacity magazine on an AR-15 type of rifle as it is likely to be more persuasive when brandished at criminal assailants than would a five-shot revolver. It is worth noting that in evaluating the strength of the government’s fear of bystander injury, the State has not identified one incident where a bystander was hurt from a citizen’s defensive gun use, much less a defensive use of a gun with a high capacity magazine. The worrisome scenario is improbable and hypothetical.
Page 74: The State argues that smaller magazines create a “critical pause” in the shooting of a mass killer. “The prohibition of LCMs helps create a “critical pause” that has been proven to give victims an opportunity to hide, escape, or disable a shooter.” Def. Oppo., at 19. This may be the case for attackers. On the other hand, from the perspective of a victim trying to defend her home and family, the time required to re-load a pistol after the tenthshot might be called a “lethal pause,” as it typically takes a victim much longer to re-load (if they can do it at all) than a perpetrator planning an attack.In other words, the re-loading “pause” the State seeks in hopes of stopping a mass shooter, also tends to create an even more dangerous time for every victim who must try to defend herself with a small-capacity magazine. The need to re-load and the lengthy pause that comes with banning all but small-capacity magazines is especially unforgiving for victims who are disabled, or who have arthritis, or who are trying to hold a phone in their off-hand while attempting to call for police help. The good that a re-loading pause might do in the extremely rare mass shooting incident is vastly outweighed by the harm visited on manifold law-abiding, citizen-victims who must also pause while under attack. This blanket ban without any tailoring to these types of needsgoesto show § 32310’s lack of reasonable fit.
Page 81: The State has not carried its burden to justify the restrictions on firearm magazines protected by the Second Amendment based on the undisputed material facts in evidence. That is not to be lamented. It ought to provide re-assurance. To borrow a phrase, “[j]ust as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, [and] . . . the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive,” it is the proudest boast of our Second Amendment jurisprudence that we protect a citizen’s right to keep and bear arms that are dangerous and formidable.Near the end of the document, Judge Benitez eviserates the attempt by the State of California to define ordinary magazines as "a nuisance".
Page 82: 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.The conclusion of the order is exceedingly well done. I have not cut or edited it. It is on page 84-85 of the court document.
Page 84-85: 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.68Accordingly, 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.69California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.
This decision is a freedom calculus decided long ago by Colonists who cherished individual freedom more than the subservient security of a British ruler. The freedom they fought for was not free of cost then, and it is not free now.Judge Benitez has done the Republic a valuable service. He has shown himself highly capable, and more importantly, seriously committed to the rule of law. The Nation, and no doubt, President Trump, are taking notice.
©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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