Large Capacity Ammo

Duncan v. Becerra

Judge Benitez is my new spirit animal.

Last year, Judge Benitez issued a preliminary injunction against the imposition of Prop 63’s amendment to CPC §32310.  That amendment would have made simple possession of LCMs, large capacity magazines (or as we prefer to call them, standard capacity magazines), a finable infraction.  How or when they were acquired was completely irrelevant.  The mere fact they were in possession subjected one to the California Penal Code.

When Judge Benitez issued his preliminary injunction, he had to find two critical things:  1) That the Plaintiffs (us) had a high chance of winning at trial; and, 2) If the law were to go into effect that we would suffer irreparable harm. 

His issuance of the injunction came with an analysis that was unbelievably enjoyable to read, from a jurist who is, frankly, tired of the State ignoring the Constitution.

Well, last Friday he issued the underlying decision.  He granted the plaintiff’s Motion for Summary Judgment.

I would be completely remiss if I did not offer a special shout-out to all of the attorneys at Michele and Associates.  They were the civil rights lawyers who brought suit and made this possible.  Their tireless hard work has paid off… and paid off in spades.  Simply saying “thank you” seems woefully inadequate. 

So… here is the deconstruction of the decision:

As I began reading the 86-page decision, I was instantly struck with the emotional intensity Judge Benitez infused into it.  He begins by running through a litany of defensive shootings, where the victims were literally limited in their ability by the California statute neutering them to a maximum of ten rounds.  Then on page five, line 19 he drops this bomb:

“While the goal of preventing mass shootings is laudable, banning the acquisition and possession of magazines holding more than ten rounds is an unconstitutional experiment that poorly fits the goal.” 3:17cv1017-BEN (JLB) page 5, line 19 (emphasis added)

Acquisition?  Ooooh… this is going to get interesting.  The case was about the addition to §32310 as it relates to possession… it appeared that Judge Benitez was going to go a little deeper!

(If you have arrived here from our newsletter, continue reading here…)

And so he did.  Boy, did he!

Since the amended statute was in question, Judge Benitez decided to review the whole magilla! 

In the end, he struck down the entire CPC §32310 as being unconstitutional!

Yep… the restrictions on magazine capacity as articulated by 32310 are done.  Date of acquisition, “grandfathered” mags, found mags, imported mags… all academic.  They are now legal.  (Well… legal until the 9th Circuit grants an emergency stay of his ruling and seeks to overturn him… which may very well have happened by the time you read this.)

His analysis is, like his original preliminary injunction, a pure joy to read.  He is not content to simply focus his discussion on a single theory, he takes them all on.  He also uses quite colorful language.

After creating a hypothetical law-abiding citizen of “average intelligence” trying to ascertain the law to be compliant with it, he goes through the legal and convoluted research required to come up with a vague answer on legality.

His turn of phrase:  “It is enough to make an angel swear” 3:17cv1017-BEN (JLB) page 12 footnote 25.

I’m going to use that from now on.

He then begins to tackle the State’s arguments as to why the statute should withstand Constitutional muster.  Essentially, the State claims that in the interest of protecting citizens and law enforcement, this statute is a must!

His glorious response:

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.  3:17cv1017-BEN (JLB) p. 14 line 11


He then goes on an exhaustive analysis of the various tests that are required to determine if a law falls within comport with the Second Amendment.  Rather than simply rely on a single sliding scale test (strict scrutiny or intermediate scrutiny), he decides to analyze the LCM ban on all the articulated tests.  And it fails them all.

As an aside:  There is one “test” that was very interesting.  He refers to it as the “lethality test,” essentially discussing the State’s argument that the “lethality” of the magazines makes them subject to ban.

His response:

“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.” 3:17cv1017-BEN (JLB) p. 21 Line 12

Hee Hee Hee.

But wait… isn’t there a 9th Circuit case that said these restrictions are okay?

Well, that case is Silveria v. Lockyer, 312 F. 3d 1052, 1066-67 (9th Cir. 2002)  The State sure argues that it does!

Benitez points out that case was decided pre-Heller, when the States did not recognize the Second Amendment as an individual fundamental right.

(Thank you late Justice Scalia… we owe you big for this one!)

Now, he does state that some magazines are fairly uncommon and, thus, potentially fall outside the scope of the Second Amendment (100-round magazines might be one such).  But he rejects the State’s argument that since they are uncommon in California they are uncommon as it relates to this analysis.

Essentially, he says one can’t make something illegal and then claim that it is uncommon because it has been unconstitutionally regulated out of the stream of commerce, especially when the magazines are ultra common in other states throughout the Union.

When he does his strict scrutiny analysis, the colorful language returns:

“Section 32310 is not narrowly tailored; it is not tailored at all.  It fits like a burlap bag.  It is a single-dimensional, prophylactic blanket thrown across the population of the State.”

3:17cv1017-BEN (JLB) p.43 line 27

He also looks at the exemptions (or lack thereof) to §32310.  When doing his intermediate scrutiny analysis, he states:

“§32310 makes an exception for retired peace officers, but not for CCW holders or honorably discharged members of the armed forces.  There is no evidence that a retired peace officer has better firearms training.” 3:17cv1017-BEN (JLB) p. 61 Line 1

The final order:

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 injection order, or know of the existence of this injunction order, are joined from enforcing California Penal Code section 32310. 3:17cv1017-BEN (JLB) p. 86 line 5

My God… it felt good writing that last quote!


On April 1, (yeah… April fools day)… CA DOJ petitioned the court to issue a stay pending appeal.  They want the stay to ratchet back to the original preliminary injunction stay… meaning that §32310 goes back into effect, however the prop 63 portion does not.  Basically, they want the clock turned back to last Thursday until the 9th rules on the merits. 

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Comments (7)

  • Gregory M Shin Reply

    I like your take on current court ruling, I hope my mags come before the stay. Thanks Greg S

    04/03/2019 at 08:11
  • Lauretta Reply

    Great write-up article, Steve!! A pleasure to read this morning … even if it ends up being a small, fleeting pleasure that gets overturned by the 9th Circuit. Now if we could just get Becerra to include banning few gun mods in on that write-up as unconstitutional, too? That would be the cherry on top.

    04/03/2019 at 09:04
  • Eric Reply

    Great read! A momentary victory amid this perpetual tyrannical siege upon the 2nd amendment.

    Thank Steve!

    04/03/2019 at 09:29
  • Andrew G Reply

    In the meantime Californians are buying suppliers out of standard capacity Magazines while we await the next steps. Love it

    04/03/2019 at 10:12
  • Bob Dallape Reply

    So, it looks to me like we are in limbo. The 9th circuit, being what it is, is likely to reverse this decision and off it goes to the supreme court. In that case it is still going to be awhile before we can run out and buy our mags (Yes? No?).

    04/03/2019 at 11:18
  • Mike Reply

    They are already for sale. Buy them now.

    04/03/2019 at 22:11
  • Michael Templeman Reply

    I believe a stay was issued for 4/5 @ 5PM…so the window to purchase seems to be closing in 5 hours. Unclear what suppliers will do with magazine orders placed that have not been shipped or are on back order as of the cutoff.

    Also unclear if these “window” purchased magazines will fall under a “grand fathered” clause as having been legally acquired and therefore legal to possess.

    The good news is that 2A supporters will win in the end based on SCOTUS make up when this case gets appealed after 9th Circuit reversal.

    04/05/2019 at 12:11

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