Judge Deals California’s ‘High-Capacity’ Magazine Ban a Killer Blow

Big news from the Golden state! Let’s all yell “Hooray!” and pass the 30-round mags… Well, not quite yet. However, it is a step in the right direction for the defense of our Second Amendment rights and draconian attempts to limit magazine capacity.

Last Friday, United States District Court Judge Robert Benitez ruled that California’s ban on magazines capable of holding more than 10 rounds violated the Second Amendment. His reasoning was the most interesting part — and a must read. This is a judge who really looked at history in justifying his decision.

UpLULA magazine loader with two coyote brown mags
We all love our 30-round AR and AK mags, but the 10-round limit has the potential to hurt all people who carry concealed.

According to Judge Robert Benitez, California’s restriction on so-called ‘high-capacity’ magazines failed the test to determine constitutionality that was created by the Supreme Court last year.

“This case is about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes,” Judge Benitez wrote in Duncan v. Bonta. “Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.”

While the ruling was a solid victory for Second Amendment rights, in reality (for now) all this did was push the case back up to the higher courts. According to the scholarly law dogs, likely this case will have to ultimately be decided by the Supreme Court of the United States (SCOTUS).

Duncan v. Bonta is leading three additional cases which were also granted, vacated, and remanded by SCOTUS back to the lower courts. The Court’s reasoning in each was based on its ruling in New York State Rifle and Pistol Association v. Bruen. In essence, that means SCOTUS has given the lower courts another chance to either reverse their decisions or add additional points to be considered, should it be considered by SCOTUS again.

For Duncan v. Bonta, the next stop will be the Ninth Circuit Court of Appeals — a court with a history that leans more than just a little to the left. However, that is not to say that the court will bring a preconceived bias.

Puzzle of the U.S. constitution with pieces missing
Beyond concealed carry, Bruen could join the ranks of the Heller and McDonald cases in shaping future court decisions.

This will mark the second time the appeals court hears an appeal of a decision from Judge Benitez striking down the magazine limit. In 2021, an en banc panel reversed Judge Benitez’s decision and upheld the restriction as constitutional, so I would not be too hopeful that the court will rule in Second Amendment advocates’ favor this time.

Previously, Judge Susan P. Graber wrote for a 7–4 majority of the Ninth Circuit, “Nothing in the record suggests that the restriction imposes any more than a minimal burden on the Second Amendment right to keep and bear arms. Similarly, the record suggests at most a minimal burden, if any burden at all, on the right of self-defense in the home.”

There is a concept known as a two-step test that weighs the state’s interest in supporting the law against the infringement on the citizen’s rights. This is where the populous divides and takes sides. However, SCOTUS struck down this old test and instituted a new one in Bruen decision last year.

Instead of doing the balancing act between the state and citizens, the new test relies on determining whether any modern regulation is a close fit with those that existed when the Second Amendment was written. This is where Judge Benitez’s decision absolutely hit it out of the park, and Judge Graber’s opinion for the majority fails.

In his decision, Judge Benitez found that the government’s proposed analogues for its magazine ban didn’t overcome the legal hurdle before it.

Henry lever action rifle .30-30 20-inch barrel right profile
Historically, the states and courts did not rule lever guns to be unsafe just because they follow single-shot rifles, so why should there be a cap on magazine capacity?

“Government remains fixed on the notion that it alone can decide that anything larger than a 10-round magazine is not ‘suitable’ for a citizen to have. But there are no analogous cases in our history,” he wrote.

There are no cases where American government dictated that lever-action rifles were unsuitable because single-shot rifles were good enough or revolvers were unsuitable because derringers were good enough.

“These choices have always belonged to the People to decide for themselves how much firepower they need.”

However, Judge Benitez did not stop there. Benitez went on to point out that the laws at the time the Founding Era (when the Constitution was written) operated exactly opposite of California’s ammunition restriction.

“The right to have firearms for social security was important at the time the Constitution was adopted,” Benitez wrote. “There were many enemies of the young nation. An armed citizenry provided a much-needed deterrent effect. Early citizens remembered how the Minutemen of Lexington and Concord, Massachusetts, by assembling as a militia, fought back against the hostile British march to take away guns and gunpowder in April 1776.

These and other citizen militia laws demonstrate that, contrary to the idea of a firing-capacity upper limit on the number of rounds permitted, there was a legal obligation for the average citizen to have at least 20 rounds available for immediate use,” he continued. “There were no upper limits like § 32310; there were floors, and the floors were well above 10 rounds. California’s large capacity magazine ban is a diametrically opposed analogue.”

“We are delighted with this ruling,” Alan Gottlieb, founder of the Second Amendment Foundation, said in a statement. “The decision affects Washington Attorney General Bob Ferguson’s defense against a lawsuit challenging a similar ban in his state, which is also in the Ninth Circuit, as well as bans in other states.” Gottlieb went on to predict the case will have to ultimately be decided by the Supreme Court of the United States.

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Judge Benitez concluded his opinion by arguing the Second Amendment was “a freedom calculus decided long ago by our first citizens” that valued individual rights over the “subservient security” of the British monarchy or “smothering safety of domestic lawmakers.” He said that freedom was worth fighting for during the revolution and preserving today.

“One government solution to a few mad men with guns is a law that makes into criminals responsible, law-abiding people wanting larger magazines simply to protect themselves,” he wrote. “The history and tradition of the Second Amendment clearly supports state laws against the use or misuse of firearms with unlawful intent, but not the disarmament of the law-abiding citizen. That kind of a solution is an infringement on the Constitutional right of citizens to keep and bear arms.”

California Attorney General Rob Bonta (D.) has already filed a notice of appeal. In the next week or two, expect to hear from a Ninth Circuit. A panel will decide whether to grant an extended stay. Personally, I am not hopeful that the court will exercise due wisdom and rule in favor of the Second Amendment — based on its history. However, it does lay a groundwork and set a course to have SCOTUS hear the case. Given the current makeup of the High Court, thanks to the appointments of President Trump, this case could have national implication against gun control politicians’ attempts to disarm or reduce the citizen’s right to effective self-defense.

What’s your best guess? Will the Ninth Circuit maintain it previous stance or recognize the argument made by Judge Benitez and rule the magazine ban to be unconstitutional? Share your answer in the comment section.

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