Federal court enjoins California large-capacity magazine confiscation
By David Kopel
June 30
A California statute to confiscate large-capacity gun magazines, scheduled to take effect July 1, was enjoined by a federal district court on Thursday. This article examines the case and the court’s opinion. My co-author on his article is Joseph G.S. Greenlee, a lawyer in Steamboat Springs, Colo.
Background: Since 2000, California law has prohibited the manufacture, sale, import and transfer of magazines capable of holding more than 10 rounds. “Grandfathered” owners who possessed such magazines as of Jan. 1, 2000, could keep them.
In 2016, California voters approved Proposition 63, which, starting July 1, would forbid the possession of magazines over 10 rounds. Any Californian in legal possession of such a magazine has four options: remove the magazine from the state, sell it to a licensed firearms dealer, surrender it to a law enforcement agency for destruction or spend up to one year in county jail.
In Duncan v. Becerra, federal district Judge Roger Benitez (Southern Dist. of California) issued a preliminary injunction against enforcement of the confiscation law. A preliminary injunction normally stays in effect until the trial court issues a final ruling on the merits, after a trial or a motion for summary judgement. However, preliminary injunctions can be appealed, and it would not be surprising for the California attorney general to attempt an appeal.
The plaintiffs are represented by Michel & Associates, who were my co-counsel in a Heller amicus brief, on behalf of a large group of law enforcement organizations, including half of California’s Sheriffs.
Preliminary injunction standards: When considering a motion for a preliminary injunction, courts evaluate four factors: (1) whether plaintiffs are likely to succeed on the merits; (2) whether they would suffer irreparable harm if the injunction were not granted; (3) the balance of equities; and (4) whether the injunction is in the public interest.
To decide whether the plaintiffs are likely to succeed on the merits, the court first had to determine whether the banned magazines are protected by the Second Amendment. For reasons described below, the court so found. With that finding, all the other factors easily fell into place. The unlawful deprivation of Second Amendment rights, even temporarily, is an irreparable injury, said Benitez, extrapolating from precedents making this point in a First Amendment context. The preliminary injunction merely preserved the status quo (no new sales, no confiscation of existing magazines) that has existed since 2000. And “it is always in the public interest to prevent the violation of a person’s constitutional rights.”
Second Amendment standards: The court addressed two questions: (1) “Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation?” and (2) “Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?”
The court used two different methodologies for answering these questions. The first methodology was based on the Supreme Court’s 2008 decision District of Columbia v. Heller. Besides using what the court called Heller‘s “simple test,” the court also applied the much more complicated multi-step approach that has been used by many lower courts post-Heller. (For in-depth analysis of the complicated approach, as developed by most of the Federal Circuit Courts of Appeal, see Kopel & Greenlee, “ The Federal Circuits’ Second Amendment Doctrines,” 61 St. Louis University Law Journal 193 (2017).)
Analyzing a D.C. law that banned handguns but allowed long guns, the Heller majority’s “simple test” paid zero attention to the pro/con social science evidence about how often handguns are used for defense or for crime, whether handgun bans are criminologically beneficial or harmful, and so on. The Heller majority expressly rejected the approach in Justice Stephen G. Breyer’s dissenting opinion, which carefully set forth the pro/con statistics and studies, and then concluded that since there was good evidence on both sides, the court should defer to the D.C. Council’s legislative judgement. As Benitez explained, Heller simply asked whether the banned arms (handguns) are commonly possessed by law-abiding citizens for lawful purposes, as they obviously are.
As for the banned magazines, there are about 100 million of them nationwide. Incidentally, this was approximately the number of handguns in the United States when Heller was decided in 2008. Obviously the magazines are commonly owned by law-abiding citizens for self-defense. Indeed, some of the nation’s most popular handguns — which Heller deemed the “quintessential self defense weapon” — come with standard magazines larger than 10 rounds. Thus, the court found that the magazines are protected by the Second Amendment. Because magazines are integral to the function of a firearm, they are covered by the Second Amendment.
The Heller decision provided clear guidance on how to analyze arms prohibitions: arms that are “in common use” and “typically possessed by law-abiding citizens for lawful purposes” may not be banned...
...John Donahue. The Stanford University law professor merely cited “a few news articles and little more.” He “belittles the possibility of an elderly or disabled homeowner needing a firearm for self-defense from a violent home invasion that would hold enough rounds such that reloading was not necessary.” He opined that such a victim could just reload. Actually, noted Benitez, a newspaper article supplied by the attorney general described just such a scenario. “Among the Attorney General’s evidentiary presentation is a news account of a law-abiding woman and her husband who late one night needed to fire a gun in self-defense against armed robbers.” After two armed men broke into her home, Susan Gonzalez fired 10 shots from her .22 caliber pistol. “Unfortunately, out of ammunition, she was shot again by the other armed attacker. She was not able to re-load or use a second gun. Both her and her husband were shot twice.”...
...Takings: Besides the Second Amendment claim, the Duncan plaintiffs also argued that the magazine confiscation constituted a taking of property without just compensation, in violation of the Fifth Amendment. The court agreed.
Compensation is not required when the property taken is a public nuisance. For example, a person is using a building as a crack house, and the house is forfeited. The California statute had declared magazines over 10 rounds to be a public nuisance. “That designation is dubious. As the Supreme Court recognized a decade before Heller, ‘[g]uns in general are not ‘deleterious devices or products or obnoxious waste materials.” Staples v. United States, 511 U.S. 600, 610 (1994).”
The court could have also cited a 19th century Tennessee case, which held that although the legislature could prohibit the sale of small handguns, it had to allow licensed merchants to dispose of their existing inventory, presumably in sales to Tennessee residents. State v. Burgoyne, 75 Tenn. (7 Lea) 173 (1881). (Burgoyne did not involve the Second Amendment, which at the time was considered not to limit state governments. The Tennessee ban was repealed long ago, was an attempt to disarm free blacks, who could not afford expensive guns. The portion of the opinion upholding the sales restriction would be very dubious under Heller.)...
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