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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.68


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.69 California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.
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The Annoyed Man wrote: ↑Fri Mar 29, 2019 8:52 pm I’m not holding my breath.

RoyGBiv wrote: ↑Sat Mar 30, 2019 9:01 am 9th circuit will overrule, either by panel or en Banc.
Then SCOTUS will have to decide whether to grant cert.

Paladin wrote: ↑Sat Mar 30, 2019 9:53 am

RoyGBiv wrote: ↑Sat Mar 30, 2019 9:01 am 9th circuit will overrule, either by panel or en Banc.
Then SCOTUS will have to decide whether to grant cert.

...Unless the 9th Circuit is too afraid to send it to the SCOTUS

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 tenth shot 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.

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."