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Federal Judge Rules California Magazine Ban Unconstitutional

On Friday, Judge Benitez of the United States District Court in the Southern District of California granted a motion for summary judgment in Duncan v. Becerra, et al., declared that California Penal Code § 32310 was unconstitutional and enjoined the state from enforcing it. Duncan is the second case that was filed challenging California's ban on “large-capacity” magazines. Firearms Policy Coalition, along with Firearms Policy Foundation, Second Amendment Foundation, The Calguns Foundation, and several individuals had filed the first suit Wiese v. Becerra, et al., which recently survived its third motion to dismiss.

Section 32310 states

(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.

In more simple terms, the section punishes anyone in California who manufactures, imports, sells, offers to sell, gives, lends, buys or receives any “large-capacity” magazine by imprisonment. The section also punishes any person who possesses a “large-capacity” magazine, regardless of the date the magazine was acquired, by a fine up to $100 per magazine, imprisonment in a county jail for up to one year or both.

Before the implementation of Section 32310, Californians were able to possess and personally use “large-capacity” magazines that were in their possession prior to January 1, 2000. Section 32310 removed that grandfather provision by requiring Californians to divest themselves of those magazines which were previously lawful to possess.

The Heller Test

The Court began its analysis using the test spelled out by the Supreme Court in District of Columbia v. Heller. “The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual ‘in common use' ‘for lawful purposes like self-defense.'” Put another way, the only questions that need to be asked are 1) Is the firearm hardware commonly owned? 2) Is the hardware commonly owned by law-abiding citizens? and 3) Is the hardware owned by those citizens for lawful purposes? If the answer to those questions is yes, the analysis is over and the law cannot withstand constitutional scrutiny.


“[Section 32310] directly infringes by broadly prohibiting common firearms and their common magazines holding more than 10 rounds, because they are not unusual and are commonly used by responsible, law-abiding citizens for lawful purposes such as self-defense.” The Court noted that there were at least one hundred million magazines with a capacity of more than 10 rounds in the possession of American citizens and were commonly used for lawful purposes such as home defense, recreational target shooting, and hunting. Judge Benitez determined that the law did not pass the Heller test.

Historical Prohibitions Exception

California attempted to circumvent the Heller Test by arguing that it was inapplicable since it does not apply to historically-accepted prohibitions on Second Amendment rights. The Opinion noted that detachable magazines were a product of the 19th century and it was not until 1990 that New Jersey passed the first law which addressed capacity limits of detachable magazines. The Court acknowledged that eight other states subsequently passed similar laws and that the federal Assault Weapons Ban in 1994 also addressed magazine capacity limits but had expired and was not renewed. The Court outright rejected other arguments advanced by California in relation to this line of argument finding that there was no historical pedigree to support such a claim.

Heightened Scrutiny

The Court also determined that under any form of heightened scrutiny test, such as strict or intermediate scrutiny, the magazine ban would fail. For readers who were wondering why this type of challenge was not brought earlier under the old statutory scheme, the Court explains:

when California began experimenting with its larger-capacity magazine ban less than twenty years ago, it appeared that the Second Amendment conferred no rights on individual citizens and did not apply to the states, and that an individual lacked Article III standing in federal court to challenge the ban.

The opinion explains that the magazine ban “arbitrarily selects 10 rounds as the magazine capacity over which possession is unlawful,” it makes no exceptions, “beyond those for law enforcement officers, armored truck guards, and movie stars,” “does not distinguish between citizens living in densely populated areas and sparsely populated areas of the state” and that “the ban on magazines that hold more than 10 rounds amounts to a prohibition on an entire class of ‘arms' that is overwhelmingly chosen… for the lawful purpose of self-defense.” As such, Judge Benitez determined that the ban fails under any level of heightened scrutiny.

Tripartite Binary Test with Sliding Scale and Reasonable Fit Test

…there are three different two-part tests, after which the sliding scale of scrutiny is selected…It is an overly complex analysis that people of ordinary intelligence cannot be expected to understand.

The tests are 1) burden and scrutiny, 2) presumptively lawful or historical regulation, and 3) closeness to the core and severity of the burden. The Court had already determined that Section 32310 burdened Second Amendment conduct. It also determined that a complete ban on ammunition magazines of any size was not one of the presumptively lawful regulatory measures identified in Heller, nor was there any evidence that magazine capacity restrictions have a historical pedigree. Under the last test, the Court found that the law struck at the core of the Second Amendment. The 9th Circuit has said that “[a] law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny.” Judge Benitez found that to be the case in this matter.

Strict Scrutiny

However, that did not end the analysis. Judge Benitez continued down the sliding scale in order to ensure the opinion covered all possible angles. A law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny. The Court determined that “[a] law like [section] 32310 that prevents a law-abiding citizen from obtaining a firearm with enough rounds to defend self, family, and property in and around the home certainly implicates the core of the Second Amendment. When a person has fired the permitted 10 rounds and the danger persists, a statute limiting magazine size to only 10 rounds severely burdens that core right to self-defense.”


Strict scrutiny “requires the Government to prove that the restriction on a constitutional right furthers a compelling interest and is narrowly tailored to achieve that interest.” According to the Court, “the State has not offered a compelling interest for the ban, arguing that intermediate scrutiny should be the test,” and “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.” Judge Benitez found that Section 32310 did not pass constitutional muster under a strict scrutiny analysis.

Intermediate Scrutiny

Further down the scale lies intermediate scrutiny. Under intermediate scrutiny, “the government’s stated objective [must] be significant, substantial, or important; and (2) there [must] be a ‘reasonable fit’ between the challenged regulation and the asserted objective.” California identified four important interests. 1) Protecting citizens from gun violence; 2) protecting law enforcement from gun violence; 3) protecting the public safety; and 4) preventing crime.

Put another way, under intermediate scrutiny, the Court was left to determine “whether section 32310’s ban on acquisition and possession of firearm magazines holding more than 10 rounds [was] a reasonable fit for achieving these important goals.” The Court determined that the ban was not, finding that at best the statute was “ungainly and very loose.”

In support of its position, California cited to a survey from Mayors Against Illegal Guns, which had been previously addressed by the Court earlier in the procedural history. California attempted to bolster that report by citing to a Mother Jones 36-year survey of mass shootings. As the Court stated “the 36-year survey of mass shootings by Mother Jones magazine put forth by the AG as evidence of the State’s need for § 32310, undercuts its own argument. The AG’s evidence demonstrates that mass shootings in California are rare, and its criminalization of large capacity magazine acquisition and possession has had no effect on reducing the number of shots a perpetrator can fire. The only effect of § 32310 is to make criminals of California’s 39 million law-abiding citizens who want to have ready for their self-defense a firearm with more than 10 rounds.”

Judge Benitez further chastised the state for using surveys from Mayors Against Illegal Guns and Mother Jones

This is federal court. The Attorney General has submitted two unofficial surveys to prove mass shootings are a problem made worse by firearm magazines holding more than 10 rounds. Do the surveys pass the Federal Rule of Evidence Rule 403 test for relevance? Yes. Are the surveys admissible under Federal Rule of Evidence Rule 802? No. They are double or triple hearsay. No foundation has been laid. No authentication attempted. Are they reliable? No. Are they anything more than a selected compilation of news articles – articles which are themselves inadmissible? No. Are the compilers likely to be biased? Yes.

Where are the actual police investigation reports? The Attorney General, California’s top law enforcement officer, has not submitted a single official police report of a shooting.

The Court concluded that under intermediate scrutiny, the ban would also fail to pass constitutional muster.

The Takings Clause

Lastly, the Court analyzed the statute in relation to the Takings Clause. It determined that while the law gave individuals several options, such as the surrender of their magazine to law enforcement, the sale of the magazine to a dealer or removal from the state, that ultimately, not only would the state deprive an individual of the use of their property, but also the possession of their property. “Thus, whatever might be the State’s authority to ban the sale or use of magazines over 10 rounds, the Takings Clause prevents it from compelling the physical dispossession of such lawfully-acquired private property without just compensation.”

Judge Benitez concluded

This decision is a freedom calculus decided long ago by Colonists who cherished individual freedom more than the subservient security of a British ruler. The freedom they fought for was not free of cost then, and it is not free now.

About the Author

Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world. He was also the general manager of a gun store in the suburbs of Philadelphia.

Instagram: @theadamkraut
Twitter: @Kraut4NRA

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