Duncan v. Becerra

Duncan v. Becerra…. The Injunction

So, there are precious few times in the jurisprudence of firearms law where I get to sit back, smile, and pour myself a glass of whiskey… knowing that the legal system has rendered a decision that is not only based on a rigorous study of fact, but one that is firmly grounded in the Constitution.

Heller v. District of Columbia was the big one.  The late Justice Antonin Scalia wrote the seminal opinion on the Second Amendment, for once and for all banishing the “collectivist” theory of the Right to the ash bin of history and articulating that the Second Amendment is a “fundamental” individual right.

McDonald v. Chicago was another.  Justice Alito’s decision reaffirming Heller and further articulating the Second Amendment as a right incorporated to the states via the 14th Amendment allowed me to raise my glass again to the Founding Fathers.

In the three judge panel in Peruta… Justice O’Scannlain got it right.  His excellent opinion, a thorough examination of the history of the Second Amendment, and the understanding that the word “bear” does not mean… as Justice Thomas opined “the mere ability to carry a gun from the bedroom to the kitchen” …. more whisky please!!!

… and then there is Duncan v. Becerra.

California enacted a general magazine ban that would have made the mere possession of a magazine capable of holding more then ten rounds a fineable offense.  This law was scheduled to go into effect on July 1.  In the final hours before the law were to have gone into effect, it was effectively put on hold by the issuance of a preliminary injunction issued by the District Court Judge Roger T. Benitez.

You can read that opinion here: https://michellawyers.com/wp-content/uploads/2017/05/Duncan-v.-Becerra_Order-Granting-Preliminary-Injunction.pdf

The Honorable Roger T. Benitez did not hold anything back.

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First off, a preliminary injunction will only be issued if the judge feels that the party asking for the injunction is more likely than not to prevail at trial.  Second, an “irreparable harm” must accrue to the party if the injection is not given.

Judge Benitez recognized that both would apply.

His decision begins with the phrase: “On July 1, 2017, any previously law-abiding person in California who still possesses a firearm magazine capable of holding more than 10 rounds will begin their new life of crime”

Well, that sets the tone doesn’t it?

Within his lengthly decision, Judge Benitez offers some awesome legal tidbits.

On page thirteen, line thirteen… he proffers this statement from McDonald:

“Some may fear that the right to keep and bear arms means citizens hold a right to “possess a deadly implement and thus have implications for public safety,” and that “there is intense disagreement on the question whether the private possession of guns in the home… increases or decreases gun deaths and injuries.” McDonald, 561 U.S. at 782-83 (argument of the City of Chicago). True enough. But, public safety interests may not eviscerate the Second Amendment. “The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.” McDonald, 561 U.S. at 783 (collecting cases where those likely guilty of a crime are set free because of constitutional rights).”


We would never consider abandoning the Fourth Amendment because some criminals are acquitted due to Fourth Amendment violations… yet we parse down the Second Amendment to a second class right, because some criminals misuse the access to guns that comes with the Second?


“Constitutional rights thus implicitly protect those closely related acts necessary to their exercise . . . The right to keep and bear arms, for example… ‘implies a corresponding right to obtain the bullets necessary to use them.’” Luis v. United States, 136 S. Ct. 1083, 1097 (2016)”

Sorry 9th Circuit, your sophistry has been rejected.  The idea that a magazine is not protected by the Second Amendment does not pass the smile test.  Even if we were to posit that the magazine was so unique and separate from a firearm that it was not “part of the gun,” the fact remains: that they would be protected as ancillary needs for an individual to exercise  their fundamental right to keep and bear arms.

In the end… my favorite part of the option was this:

“1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order or know of the existence of this injunction order, are enjoined from implementing or enforcing California Penal Code sections 32310 (c) & (d), as enacted by Proposition 63, or from otherwise requiring persons to dispossess themselves of magazines able to hold more than 10 rounds lawfully acquired and possessed.

2. Defendant Becerra shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. The government shall file a declaration establishing proof of such notice.

DATED: June 29, 2017”

So there you have it.  A brief glimmer of hope in an otherwise depressing sea of California legislative gun control.  We must celebrate when we have a victory!  Can you run out today and buy standard capacity magazines in Anaheim?…. of course not.  You couldn’t do that last week either.  But if you have acquired your magazines legally, through a non – legislatively proscribed manner, you are not mandated to destroy them or ship them out of state.

Thank you your honor!

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