Last year in New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court overturned that state's restrictions on public possession of handguns for self-defense. A week later, the Court vacated four appeals court decisions upholding state gun control laws and remanded the cases for further consideration in light of Bruen. One of those cases, Duncan v. Bonta, involved California's ban on magazines that hold more than 10 rounds, which a federal judge deemed unconstitutional in a decision published on Friday.
"There is no American history or tradition of regulating firearms based on the number of rounds they can shoot, or of regulating the amount of ammunition that can be kept and carried," writes Roger Benitez, a judge on the U.S. District Court for the Southern District of California. "Because the State did not succeed in justifying its sweeping ban and dispossession mandate with a relevantly similar historical analogue, [California's magazine limit] is hereby declared to be unconstitutional in its entirety and shall be enjoined." Benitez stayed his injunction for 10 days, allowing California time to challenge his decision.
This was not the first time that Benitez had concluded that California's restriction on magazine capacity was inconsistent with the Second Amendment. In 2017, at an earlier stage of the case, then known as Duncan v. Becerra, Benitez issued a preliminary injunction against Proposition 63, a 2016 ballot initiative that prohibited possession of what California calls "large capacity magazines" (LCMs). That initiative expanded a 2000 law that already prohibited manufacture, importation, and distribution of LCMs, which previously had allowed continued possession of magazines acquired prior to the ban.
Two years later, Benitez made that injunction permanent and expanded it to cover the earlier restrictions on LCMs. "California's law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny," he wrote. That decision initially was upheld by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, but it was reversed in a 2021 en banc decision, which is the ruling that the Supreme Court vacated last year. The 9th Circuit responded by sending the case back to Benitez.
This time around, the plaintiffs had an even stronger case. Under Bruen, laws that regulate conduct covered by the "plain text" of the Second Amendment must be consistent with "this Nation's historical tradition of firearm regulation." California struggled to meet that test.
The state, which requested and received extra time to study the historical record, "produced a list of 316 laws covering 550 years—from 1383 to 1933." Many of those laws were "not relevant" in assessing the original public understanding of the right to keep and bear arms, Benitez says, because they were enacted either before 1791, when the Second Amendment was ratified, or long after 1868, when the 14th Amendment required states to respect that right. And nearly all of the rest concerned matters far afield from a restriction on magazine capacity, such as the manner in which guns could be carried or used.
When "asked to identify the best historic analogue to its sweeping prohibition on large
capacity magazines," Benitez says, California cited a 1784 New York City law that imposed a 28-pound limit on the amount of gunpowder that could be stored in a building. But that law had "nothing to do with gun violence," Benitez notes. Rather, it was "a fire safety regulation." The same was true of a 19th century law cited by California that prohibited Bostonians from leaving loaded, unattended firearms in buildings.
By 1868, California also noted, a dozen or so states had laws the prohibited the carrying of concealed pistols. "The concealed carry laws did not prohibit either keeping pistols for all lawful purposes or carrying all guns openly," Benitez notes. "And none included long guns or ammunition containers in their restrictions. Pocket pistols were entirely lawful to keep and use at home for self-defense. Prohibiting the concealed carrying of a pistol was constitutionally permissible only when a citizen could freely keep and carry the same gun openly."
By contrast, "today's large capacity magazine ban prohibits carrying magazines in any manner—and even more restrictively prohibits simple possession." Other laws that California presented as analogous to its LCM ban included restrictions on bladed weapons, which obviously are not examples of "firearm regulation," and bans on "trap guns," which applied not to a particular kind of firearm but to the practice of setting them to go off as a precaution against intruders.
One might object that detachable magazines are a relatively recent technological development, so it is not reasonable to demand close historical analogs from the 18th or 19th century. But Benitez notes that "the lever-action repeating Henry and Winchester rifles popular at the time of the Fourteenth Amendment were already dramatic technological advancements in firearms." Those "popular lever-action rifles had large tubular magazines that held a lot of ammunition and could be fired multiple times in succession, accurately and quickly," he says. Yet "there are no state prohibitions on possession or manufacture of these lever-action rifles in the State's law list."
Although "detachable magazines were invented in the late 19th Century," Benitez says, the first restriction on them was not enacted until 1990, when New Jersey imposed a 15-round limit, later reduced to 10 rounds. Even today, such limits are unusual. "Our federal government and most states impose no limit," Benitez notes, "and in the states where limits are imposed, there is no consensus" about the appropriate cutoff. Rules range from New York's defunct seven-round limit, which was ruled unconstitutional, to Delaware's 17-round cap.
In short, Benitez says, "there is no American tradition of limiting ammunition capacity," and "the 10-round limit has no historical pedigree." He calls it "arbitrary," "capricious," and "extreme."
Given the difficulty of showing that California's 10-round limit is "consistent with this Nation's historical tradition of firearm regulation," the state falls back on a policy argument that purports to weigh the benefits of LCMs in self-defense against the danger they pose in the hands of mass murderers. "In the past half-century," California Attorney General Rob Bonta said in explaining his plan to appeal Benitez's ruling, "large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths and in 100 percent of gun massacres with 20 or more deaths. We will continue to fight for our authority to keep Californians safe from weapon enhancements designed to cause mass casualties."
One problem for Bonta is that Bruen expressly rules out such an "interest-balancing" approach. Another problem: California implicitly concedes that LCMs can be useful for self-defense. Its ban exempts current and former law enforcement officers, a provision that would be puzzling if magazines that can hold more than 10 rounds had no legitimate use. Furthermore, California's argument that the need to switch magazines can have life-or-death consequences in the context of a mass shooting means the same is true in self-defense situations.
California emphasizes that a 10-round limit can create a "critical pause" during which a mass shooter's targets might either escape or disarm him. But "from the perspective of a victim trying to defend her home and family," Benitez noted in 2019, "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."
Benitez reiterates that point in last Friday's decision. "There have been, and there will be, times where many more than 10 rounds are needed to stop attackers," he writes, describing several real-life cases to illustrate that scenario. "Under this statute, the State says 'too bad.'"
California argues that such situations are rare. It presented testimony by a statistician who opined that, when guns are fired in self-defense, the average number of rounds used is 2.2. Benitez pokes holes in that estimate, which is based on opaque analyses of self-defense incidents identified by the National Rifle Association or covered by the press. Benitez questions the cutoff dates used in those analyses, notes that crucial information was often missing from the accounts, and suggests that the statistician's method for filling those gaps biased the estimate downward. But even if the estimate is accepted at face value, he says, survey data on defensive gun uses suggest that incidents where more than 10 rounds are needed "happen between 1,500 and 9,000 times" every year.
Survey data also cast doubt on California's contention that magazines with capacities exceeding 10 rounds are not covered by the Second Amendment. "Magazines that hold more than 10 rounds are possibly the most commonly owned thing in America," Benitez writes. "These larger magazines number over one hundred million." A 2021 survey of gun owners found that nearly half had owned magazines that exceeded California's limit and on average had owned about half a dozen of them, suggesting that the current total is in the hundreds of millions. "For handguns, the most popular sizes range up to 17 rounds," Benitez notes. "The most popular size for rifles is 30 rounds."
In other words, the magazines that California has deemed intolerable are clearly "in common use" for "lawful purposes," fitting the Supreme Court's definition of the "arms" that Americans are presumptively entitled to own. California nevertheless has determined that such magazines "are not necessary or even suitable to engage in private self-defense." Under the Second Amendment as interpreted by the Supreme Court, Benitez concludes, that is not the state's call.
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