Legally Armed Legal News from the Nation’s Capital

By Johanna Reeves, Esq.

Large-Capacity Magazines

Federal Court Rules California Ban Violates Second Amendment

The so-called “high-capacity magazines” (or “clips” as some politicians and advocates insist on calling them) are low hanging fruit for the anti-gun lobbyists, and have been for quite some time. Remember the federal assault weapons ban that sunset in 2004? A key provision of that statute was the criminalization of transfers and possession of “large-capacity ammunition feeding devices” (LCAFD) after September 13, 1994. What constituted an LCAFD? Any magazine or similar device that could accept more than 10 rounds of ammunition. That law sunset in 2004, but the agenda against high-capacity magazines, or whatever name chosen, has not abated. Indeed, magazine capacity is guaranteed to be a talking point after any act of mass violence involving a firearm.

In 2016, California set its sights on so-called “large-capacity magazines” (LCMs), those magazines with the ability to accept more than 10 rounds, when it included on the November ballot a proposition to criminalize ownership of LCMs. The ballot passed, and on July 1, 2017, the new law, California Penal Code section 32310 (“Section 32310”), was to take effect. However, some concerned and affected citizens filed a lawsuit challenging the new law on constitutional grounds. After 3 years and multiple hearings and appeals, a panel of Ninth Circuit Court of Appeals judges decided that the law indeed violates the Constitution. In a 2–1 decision, the panel confirmed the key findings of the district court made 1 year earlier in a March 2019 decision, including: (1) firearm magazines are protected arms under the Second Amendment; (2) large-capacity magazines are not “unusual arms” that would fall outside the scope of Second Amendment protection; and (3) prohibitions against large-capacity magazines do not enjoy a presumption of lawfulness. Given the historical importance of this decision, we will examine this case in depth and the implications.

The timing is perfect, really. Not only does this follow my recent article on why we have the Second Amendment (Small Arms Review, Vol. 24, No. 8 (August/September 2020)), but it also comes at a time when in the midst of widespread social upheaval and unrest, local governments are exercising some of the most oppressive measures in the name of public safety that we have seen in recent history.

Proposition 63

Section 32310 in its current form stems from a ballot proposition that passed on the November 8, 2016 election. The measure, titled, “Proposition 63,” included several gun control measures besides the ban on LCMs, including a background check requirement for ammunition purchases, a fine for failing to report stolen or lost guns, and requiring the California Department of Justice participate in the National Instant Criminal Background Check System (NICS). The measure had widespread support and easily passed with 63.08% of the votes (a total of 8,663,159 out of 13,733,931). Notably, there was a very large turnout for this vote, with more than 75% of voters showing up.

Before Proposition 63, Section 32310 was not nearly as broad and did not ban possession of LCMs. The section was first enacted in 2000 to prohibit the manufacture, importation (into California) and sale of LCMs (the California Penal Code defines “large-capacity magazine” in Section 16740 as any ammunition-feeding device with the capacity to accept more than 10 rounds, with certain exceptions). In 2013, the state extended the law to prohibit purchase and receipt of LCMs, but it permitted residents to keep LCMs lawfully acquired before the enactment. These measures were reflected in paragraphs (a) and (b) of the statute (see full text of Section 32310 below).

Proposition 63, however, expanded the proscriptions by adding new paragraphs (c) and (d), which criminalized possession of all LCMs, including those lawfully purchased before the statute was enacted. Specifically, the new law made it a misdemeanor, as of July 1, 2017, to possess any LCM, regardless of when the LCM was purchased, punishable by a fine not to exceed $100 per magazine, by imprisonment not to exceed 1 year, or both. The amended law also required owners to remove the magazines from the state, sell them to a firearms dealer, surrender them to law enforcement for destruction, or permanently modify the magazine to only accept 10 or fewer rounds, thus removing the magazine from the definition of LCM.

What follows is the full text of Section 32310, as revised by Proposition 63:

32310.

(a) Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

(b) For purposes of this section, ‘manufacturing’ includes both fabricating a magazine and assembling a magazine from a combination of parts, including, but not limited to, the body, spring, follower, and floor plate or end plate, to be a fully functioning large-capacity magazine.

(c) Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, commencing July 1, 2017, any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

(d) Any person who may not lawfully possess a large-capacity magazine commencing July 1, 2017 shall, prior to July 1, 2017:

(1) Remove the large-capacity magazine from the state;

(2) Sell the large-capacity magazine to a licensed firearms dealer; or

(3) Surrender the large-capacity magazine to a law enforcement agency for destruction.

There were limited exceptions to the ban, such as for active or retired law enforcement, armored vehicle security forces, or for holders of special weapons permits. The code also allowed manufacture for government use and use as props in film production. Regardless, for all intents and purposes, the law had a very broad reach. “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.” Duncan v. Becerra, 265 F.Supp.3d 1106 (S.D. Cal. 2017) (granting a preliminary injunction against the law).

Procedural History

After Proposition 63 passed, but before the new law was to take effect, plaintiffs Virginia Duncan, Richard Lewis, Patrick Lovette, David Marguglio, Christopher Waddell and the California Rifle and Pistol Association, Inc., filed suit in federal court against the attorney general of California, Xavier Becerra, challenging the law on grounds that it violated the Second Amendment and the Fifth Amendment Takings Clause. Two days before the ban was to go into effect, the district court in Duncan v. Becerra, 265 F.Supp.3d 1106 (S.D. Cal. 2017) (“Duncan I”) issued an order granting plaintiffs’ motion for a preliminary injunction. “If this injunction does not issue, hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property. That is a choice they should not have to make.” Duncan I at 1139.

Attorney General Becerra appealed the injunction in Duncan I to the Ninth Circuit and in the meantime, filed a motion with the district court to suspend all proceedings pending the appeal. The court denied the motion, allowing the underlying constitutional challenge to continue. Plaintiffs then filed a motion for summary judgment with the district court, and in 2019, the court ruled in favor of the plaintiffs and held Section 32310 to be unconstitutional in its entirety. Duncan v. Becerra, 366 F.Supp.3d 1131, 1186 (S.D. Cal. 2019) (“Duncan II”). The court’s order prohibited the attorney general, his officers, agents, employees and attorneys, as well as state and federal law enforcement from enforcing Section 32310.

As would be expected, Attorney General Becerra appealed the Duncan II decision to the Ninth Circuit and requested the district court suspend its judgment while that appeal was pending. The district court granted a partial stay pending final resolution of the appeal. See Duncan v. Becerra, 2019 WL 1510340 (S.D. Cal. Apr. 4, 2019).

Which brings us to the present decision. The panel of three judges from the Ninth Circuit heard arguments on April 2, 2020, and on August 14, 2020, affirmed the district court’s summary judgment, holding that the Section 32310 ban on LCMs violates the Second Amendment because “it severely burdens the core of the constitutional right of law-abiding citizens to keep and bear arms.” —F.3d—, 2020 WL 4730668 at 4 (9th Cir. 2020) (“Duncan III”).

Firearm Magazines Are Protected Arms Under the Second Amendment

In determining that Section 32310 burdens constitutionally protected conduct, the court found magazines enjoy Second Amendment protection because “[w]ithout a magazine, many weapons would be useless, including ‘quintessential’ self-defense weapons like the handgun. … Put simply, a regulation cannot permissibly ban a protected firearm’s components critical to its operation.” Duncan III at 7 (citing to District of Columbia v. Heller, 554 U.S. 579, 629 and 630(2008)).

Regarding LCMs in particular, the court held that they are not “unusual” arms and therefore fall within the scope of the Second Amendment. Looking again at the precedent set under Heller, the court acknowledged that some arms may not fall under constitutional protection if they are dangerous and unusual. LCMs, however, are not unusual, enjoying a long history of use and availability in the United States, dating back more than 200 years. “Arms are not unusual if commonly owned and typically used by law-abiding citizens for lawful purposes.” The court did not opine on the dangerousness of LCMs, reaffirming the Supreme Court standard that “[a] weapon may not be banned unless it is both dangerous and unusual” (citing Caetano v. Massachusetts, 136 S.Ct. 1027, 1031 (2016) (Alito, J., concurring). However, it did note that statistics show criminal use of LCMs to be relatively low in comparison to their market saturation. Duncan III at 9, n. 8.

“The Second Amendment Is Not a Second-Class Right”

Finding that Section 32310 burdened constitutionally protected conduct, the court held the statute was subject to strict scrutiny, the highest and most stringent judicial test of a law. The reason was that “32310 strikes at the core right of law-abiding citizens to defend hearth and home, and the burden imposed on the core right is substantial.” Duncan III at 12. The court also rejects those decisions in which other courts have applied the lesser standard of intermediate scrutiny in contradiction to Heller. “[T]he Second Amendment is not a second-class right. … Nor is self-defense a dispensation granted at the state’s mercy.” Duncan III at 15 (citing McDonald v. City of Chicago, 561 U.S. 742, 780-81 (2010)).

The state argued the law does not impose a substantial burden on the Second Amendment because citizens can still defend themselves with guns equipped with non-LCMs. But the court rejects this notion.

The state essentially invites us to engage in a policy decision that weighs the pros and cons of an LCM ban to determine ‘substantial burden.’… But the Supreme Court in Heller took any such policy-balancing notion off the table: ‘The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.’

Duncan III at 16, citing Heller at 634-35. The court went on to make a very shrewd observation.

The state speculates that a complete prohibition is necessary to avoid legally owned LCMs from falling into the wrong hands. But the flaws of that argument are obvious. The state could ban virtually anything if the test is merely whether something causes social ills when someone other than its lawful owner misuses it. Adopting such a radical position would give the government carte blanche to restrict the people’s liberties under the guise of protecting them.

Duncan III at 26 (emphasis added).

It is precisely the government’s ability to restrict our liberties under the pretext of protecting us where we are most vulnerable. History is rich with tragic examples of governments chipping away at the rights of its citizens. Stripping the power of self-defense is a very effective means to a desired end of ensuring the people are dependent on the government.

Attorney General Becerra’s office is currently reviewing the decision, and in a statement said, “Until further court proceedings, the stay on the injunction issued by the district court remains in place. The Attorney General remains committed to using every tool possible to defend California’s gun safety laws and keep our communities safe.”

This brings me to the end of this article, but clearly this is not the end of the story. I will keep you posted on developments as they unfold.

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The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.

About the author –

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than 17 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.