Featured California Magazine Ban Stopped in Its Tracks Alexandria Kincaid July 24, 2017 Join the Conversation Gone are the days when the law required Americans to be armed. Instead, we face a new bans on guns, ammunition, or firearms accessories every time we turn around. In fact, many people see no reason for civilians to have guns at all, let alone the weapons they view as designed specifically for the military. Because of this flawed viewpoint, too many Americans, including politicians, prefer to take machine guns, assault weapons and large-capacity magazines completely out of the hands of civilians. These gun control advocates have tried various ways of accomplishing their desired end. Until recently, the gun bans that withstood constitutional challenges all included a special protection for the people who own a newly banned firearm or firearm accessory. These protections are commonly called grandfather clauses. Grandfather clauses allow the owners of firearms banned by a new law to keep them, despite the new restrictions against buying, making or transferring them. Some readers will recall when the cost of machine guns skyrocketed after the Firearm Owners Protection Act (the FOPA) was passed in 1986. The FOPA prohibited civilians from buying machine guns made after the date the law went into effect. People who owned machine guns made before 1986 suddenly saw the value of their machine guns increase substantially. While the FOPA remains a prohibitive ban that must be faced and dealt with by modern gun owners, it did't force machine gun owners to turn in lawfully owned machine guns. California’s Safety for All Act (Proposition 63) Enter: California’s lawmakers. Last fall, the majority of California’s voters passed the Safety for All Act of 2016, otherwise known as Proposition 63. This new law eliminates the grandfather clause from the magazine ban that was in effect in California for more than a decade. That grandfather clause allowed Californians to keep legally owned, California-defined large capacity magazines after the law went into effect. Under the new version of California’s magazine ban, with the grandfather clause removed, Californians who have magazines with greater than a 10 round capacity will have to get rid of them in order to avoid becoming criminals overnight. These magazine owners faced going to bed on June 30th as law-abiding citizens and waking up on July 1st as criminals for doing nothing other than keeping their legally owned property. Like machine guns and so-called assault weapons, magazines that hold more than a certain number of rounds are often the target of gun control laws. The Supreme Court has yet to decide if these bans violate the Second Amendment. While we wait for the Supreme Court to run interference, states continue to pass these bans, which typically make it illegal to transfer or manufacture the banned firearms or magazines. The difference between other state bans and California’s ban is the requirement in California’s law for owners of these magazines to dispose of their previously, legally owned magazines with little or no compensation. The California politicians and voters who passed this law purposefully disregarded, or never bothered to understand, not only the Second Amendment, but also the Takings Clause of the Fifth Amendment. The Takings Clause protects our right to own property and prevents the government from taking this property from us without paying us for it. In other words, if the government can lawfully take our private property for public use, the government cannot force us to turn that property over or get rid of it without being paid for it. Because California’s law forces people to give up their magazines without compensation, California’s new magazine ban violates not only the Second Amendment, but the Takings Clause of the Fifth Amendment as well. What Does the Safety for All Act Supposedly Do for Californians? As usual, the proposal for a gun control law must appeal to the emotions of the misinformed. The Safety for All Act claims that “Military-style large-capacity ammunition magazines — some capable of holding more than 100 rounds of ammunition — significantly increase a shooter's ability to kill a lot of people in a short amount of time. That is why these large capacity ammunition magazines are common in many of America's most horrific mass shootings, from the killings at 101 California Street in San Francisco in 1993 to Columbine High School in 1999 to the massacre at Sandy Hook Elementary School in Newtown, Connecticut in 2012.” The Act also claims to close a dangerous loophole: “Today, California law prohibits the manufacture, importation and sale of military-style, large capacity ammunition magazines, but does not prohibit the general public from possessing them. We should close that loophole. No one except trained law enforcement should be able to possess these dangerous ammunition magazines.” The alleged benefit of this new law is the prevention of future mass shootings. By passing a law banning the ownership of large-capacity magazines, Californian's will never witness another high-capacity fueled tragedy, such as those at Sandy Hook Elementary School, the movie theater in Aurora, Colorado, Columbine High School, and the office building at 101 California Street in San Francisco, California. Under this new law, anyone who owned a magazine capable of holding more than 10 rounds prior to July 1, 2017 was required to remove it from the state, sell it to a licensed dealer, or turn it in to law enforcement without compensation. Note that even if a Californian sold a magazine to a licensed dealer, its value was likely zero, because the dealer could not resell it to the general public in California. The law also includes a few exceptions for active or retired law enforcement to avoid compliance with this new law, but there is no exception for active, honorably discharged, or retired military. Those who did not comply with the new law by ridding themselves of the evil magazines could be found guilty of an infraction, similar to a speeding ticket, and fined $100 per magazine, or guilty of a misdemeanor and jailed up to a year and fined $100 per magazine. Of course, the voters were fine with government officials keeping and using these supposed weapons of death that can kill large numbers of innocent people in one swoop. History has apparently been completely lost on these folks. Gun Owners Stood up to Fight Not all Californians agreed with the new law. A group of gun owners, two of whom are retired military, and the California Rifle and Pistol Association sued the Attorney General of the State of California in a case titled Duncan, et al v. Becerra. They requested the United States District Court stop the law from taking effect and deem it unconstitutional because it violates the Second and the Fifth Amendments. Lawsuits can take years to finish. Because of how long a lawsuit can drag on, those involved can ask the court for a temporary, preliminary ruling, so that they are not harmed while the lawsuit makes it way through the court. One of the first steps in this lawsuit was for the gun owners to ask the law not go into effect on July 1st as scheduled. The gun owners asked the judge to restrain the State of California from enforcing the new magazine ban until their case could be heard by the court. This type of request is for a special court order, called a preliminary injunction, (similar to a temporary restraining order) prevents the law from taking effect while the lawsuit is ongoing. You may recall that federal judges issued preliminary injunctions to temporarily halt President Trump’s travel ban earlier this year. Federal District Court Judge Roger T. Benitez, born in Cuba and appointed by George W. Bush in 2004, considered the gun owners’ request for a preliminary injunction. Judge Benitez’s written opinion on the gun owners’ request is a breath of fresh air. His opinion is logical and overflowing with common sense. He begins, “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.” Judge Benitez recognized that California has one of the most restrictive gun control systems in the country, and that the web of laws faced by those gun owners who wish to comply is “difficult to understand for all but the most learned experts.” In other words, there are so many laws no one even understands what they are anymore, and the average person who would like to try to figure out what is legal and what is not will most likely not be able to do so. He pointed out that even the attorney for the State of California was unable to describe all of the law’s nuances. He said he was not surprised, nor did he blame her, because “The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law.” His wrote that “The State of California’s desire to criminalize simple possession of a firearm magazine able to hold more than 10 rounds is precisely the type of policy choice that the Constitution takes off the table.” In other words, his opinion is that large-capacity magazines are protected by the Second Amendment and cannot be banned. What Does the Preliminary Injunction Accomplish? While Judge Benitez’s opinion and preliminary injunction will only be in place until the lawsuit is finished, in order for a federal judge to issue a preliminary injunction, he must allude to what his final decision in the case will be. Judge Benitez had to answer two questions affirmatively to issue the temporary order: Does a law-abiding responsible citizen have a right to defend his or her home from criminals using whatever common magazine size he or she judges best suits the situation? Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia? Judge Benitez said that he believed his final decision in the case would likely be “yes” to both of these questions, and that if gun owners had to give up their property while the lawsuit is pending, they would suffer irrevocable harm. Judge Benitez ripped to shreds the usual, emotional, and supposedly factual evidence provided by the State of California. This supposed evidence in support of the new ban included data provided on behalf of Mayors Against Illegal guns, a.k.a. Everytown for Gun Safety. Because Judge Benitez believes the gun owners are right and the State of California is wrong, he granted the gun owners immediate relief in the form of a preliminary injunction and did not allow the law to go into effect as scheduled. He must still make a final ruling in the case, after both sides have finished the lawsuit process. What is Next? Judge Benitez decided that the new California law violates the Second Amendment and the Takings Clause of the Fifth Amendment. To decide the Second Amendment issue, he declined to engage in any of the usual, overly complicated legal analyses engaged in by most courts. Those complicated analyses almost always result in the court deciding that the Second Amendment is not violated. Instead, Judge Benitez turned to a simple test outlined by the United States Supreme Court: Does the law ban firearms commonly used for a lawful purpose? Judge Benitez found that by answering this simple question, he could conclude that the new California law violates the Second Amendment, because the law “prohibits common pistol and rifle magazines used for lawful purposes.” As a result, citizens have a right under the Second Amendment to keep them. He added that the magazines the California law would ban are lawful in at least 43 states and under federal law, and that they number in the millions across the country. If our Supreme Court would use this test and reach the same conclusion, not only would California’s law be unconstitutional, but likely all of the other bans of assault weapons and magazines that have been passed in other states would also be unconstitutional. In other words, the saga of state laws banning certain types of firearms and magazines would finally come to an end. Judge Benitez’s opinion, unfortunately, has a narrow and temporary effect. It halts only the California government's magazine grab, giving California’s gun owners some relief until their legal appeal is finished. Judge Benitez’s legal analysis is, however, a model for future courts to follow, particularly with respect to his analysis of the Second Amendment. It is intelligent, factually accurate, and applies the correct, Supreme Court issued test for whether a law violates the Second Amendment. We can only hope that in the not too distant future, our Supreme Court will issue a similar opinion on firearm and magazine bans, once and for all ridding Americans of these illogical, complicated, and unconstitutional bans. Attorneys for the State of California may appeal the decision to the Ninth Circuit Court of Appeals. If you pay attention at all to gun control cases, you know that the Ninth Circuit will have a different opinion than Judge Benitez. If this case is appealed to the Ninth Circuit, it may next be appealed to the Supreme Court of the United States. Hopefully, Judge Benitez has been appointed our next Supreme Court Justice by then. About the Author Alex Kincaid is a former elected district attorney and current firearms law attorney with over 19 years experience. She is an active proponent of the Second Amendment, a legal analyst, and author. Alex hosts an online show highlighting current firearms law-related news called The AK Show. www.alexkincaid.com Explore RECOILweb:Scandinavian KnivesThe NRA's Tax Exempt Status is Under FireConcealed Carry Options: Crucial Concealment Covert OWB and Galco's Fastrax Fanny PackCigar tools, custom pens and leather: Leather Cigar NEXT STEP: Download Your Free Target Pack from RECOILFor years, RECOIL magazine has treated its readers to a full-size (sometimes full color!) shooting target tucked into each big issue. Now we've compiled over 50 of our most popular targets into this one digital PDF download. From handgun drills to AR-15 practice, these 50+ targets have you covered. 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