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Gun Magazine Confiscation Stopped In California.

A law allowing for the confiscation of gun magazines with over ten bullet capacity has been deemed unConstitutional by the United States District Court for the Southern District of California.

Prop 63 had been passed and required owners of “high capacity magazines” turn them in, modify them to not hold as many rounds, or send the magazines to another state.

According to the Volokh Conspiracy, the opinion by Judge Roger T. Benitez is solid and addresses many issues.

Previously, Judge Benitez had issued a preliminary injunction against the confiscation law, and the preliminary injunction was upheld by the Ninth Circuit, as discussed in this post. Today’s decision follows cross-motions for summary judgment, and makes the injunction permanent. The next step in Duncan v. Becerra will be an appeal to the Ninth Circuit by California Attorney General Xavier Becerra.

The 86-page opinion is the most thorough judicial analysis thus far of the magazine ban question. The opinion is founded on a careful analysis of the record, and thus provides an excellent basis for future appellate review on the merits, perhaps one day by the U.S. Supreme Court.

Covering all bases, the opinion analyzes the confiscation law under a variety of standards of review. First is the standard favored by Judge Benitez, what he calls “The Supreme Court’s Simple Heller Test.” In short, magazines over 10 rounds are plainly “in common use” “for lawful purposes like self-defense.” Ergo, they may not be confiscated. The analysis is similar to then-Judge Kavanaugh’s dissenting opinion in the 2011 Heller II case in the D.C. Circuit.

The Duncan opinion then examines the confiscation statute under various levels of “heightened scrutiny”: categorical invalidation, strict scrutiny, and intermediate scrutiny. The confiscation statute is found unconstitutional under each of these standards.

Under the various heightened scrutiny tests, the government bears the burden of proof. The opinion explains in depth why the evidence put forward by the California Attorney General does not come close to carrying that burden. The core problem is that the Attorney General’s evidence, which relies heavily on expert declarations, is speculative, shoddy, or unrelated to the statute at issue.

Nor are there any “longstanding” laws that create a tradition of banning magazines over ten rounds–notwithstanding the Attorney General’s efforts to invent such a tradition based on state machine gun controls enacted in the 1920s or 1930s.

The Attorney General’s argument that law-abiding citizens do not “need” magazines over 10 rounds is rejected as directly contrary to Heller, which defers to the choices of the American people, not the government, about what is appropriate for self-defense. Several incidents detailed at the beginning of the opinion describe the harms suffered by crime victims who had insufficient defensive ammunition capacity.

Moreover, defense against ordinary criminals may be a leading purpose of the Second Amendment, but it is not the only purpose. “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.” The government may not respond to bad political ideas by censoring speech, nor respond to crime waves “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.”

The case is Duncan v. Beccera and you should read at least the first few pages to understand where the judge is coming from and going to:

While we like the Volokh Conspiracy analysis, our friend William Teach over at the Pirates Cove also has a post which links to several threads that are more “friendly” to the understanding of the general public.

(Funny how posts work out sometimes. We had finished writing this post and were scooting around the interwebs to our favorite sites and saw Teach’s post. We liked it so much that we thought we would stick the link to it so you can see other analysis of the same case.)

This ruling will certainly be appealed to the Ninth Circuit, but what may be troubling for those seeking to confiscate the magazines is that Ninth Circuit upheld the original stay of the order stopping the implementation of the law. While that doesn’t mean the entire Ninth Circuit will rule uphold Judge Benitez’s ruling, it might give an insight that the Judges found Benitez had in fact followed Supreme Court cases and reasoning.

For the majority, this seemed to be an easy case. The district judge had correctly found that prohibiting magazines over 10 rounds implicates the Second Amendment right, as other courts have done. (Indeed, as nearly every court to consider the issue has done.)

The next question was whether the district court had applied the correct legal test. The district court had applied one test based on the straightforward language of Heller (which prohibits bans on arms that “in common use” and “typically used by law-abiding citizens for lawful purposes”). The district court also applied a means-end balancing test, namely intermediate scrutiny. The result was the same under either test.

According to the Ninth Circuit, the district court had correctly followed the rules of Second Amendment intermediate scrutiny created by the Ninth Circuit. Because magazine bans are not traditional in the U.S., the government had the burden of proving that the ban was lawful.

The district court finding that the government had failed to carry its burden of proof was not an abuse of discretion. “The district court’s review of the evidence included numerous judgment calls regarding the quality, type, and reliability of the evidence, as well as repeated credibility determinations.” The district court had concluded that magazine confiscation was not a good fit for any of the government’s proferred interests.

On appeal, “California articulates no actual error made by the district court, but, rather, multiple instances where it disagrees with the district court’s conclusion or analysis regarding certain pieces of evidence. This is insufficient to establish that the district court’s findings of fact and its application of the legal standard to those facts were ‘illogical, implausible, or without support in inferences that may be drawn from facts in the record.'”

For now at least, in California if you want to protect your family using magazines that some call “high capacity,” you are free to do so. That’s good news to us as the government should not and does not have the right to put people at risk because of the actions of a few.

The right of self defense is a fundamental one and the fact that some are trying to strip away or limit that right is wrong.



One Response to “Gun Magazine Confiscation Stopped In California.”

  1. Percy Veer says:

    Sheriff Taylor only gave Deputy Barney Fife one bullet, maybe he should have been a California politician instead of a sheriff ?

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