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Ninth Circuit Affirms Preliminary Injunction Against California’s High Capacity Magazine Ban

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In November of 2016 California voters approved Proposition 63, which among other things, would ban the possession of “large capacity magazines” starting July 1, 2017. Since 2000, “large capacity magazines” have been banned in California. However, the law did have a grandfather provision which allowed people to keep magazines they already had in their possession. The approval of Proposition 63 removed that grandfather clause and required people to either: 1) remove the magazine from the state, 2) sell the magazine to a licensed dealer, or 3) surrender the magazine to law enforcement for destruction. Of course, there were a few limited exceptions to the total ban for entities like law enforcement and Hollywood.

Logo for Campaign to Vote Yes on Proposition 63

Logo for Campaign to Vote Yes on Proposition 63

A lawsuit was filed in May of 2017 challenging Proposition 63's removal of the grandfather clause on magazines greater than ten rounds and seeking a preliminary injunction.

Preliminary injunction – a temporary injunction that may be granted before or during trial, with the goal of preserving the status quo before final judgment.

The court granted the preliminary injunction last June. The California Attorney General then appealed the order to the Ninth Circuit, which is notoriously anti-gun.


Earlier today, a Ninth Circuit Panel affirmed the district court's grant of the preliminary injunction. The panel found that the lower court did not abuse its discretion by concluding that “magazines for a weapon likely fall within the scope of the Second Amendment.” The opinion also stated that the district court did not abuse its discretion when it found the challenged statutes did not survive intermediate scrutiny.

For a law to survive a constitutional challenge, the intermediate scrutiny standard requires that a law further an important government interest and do so by means that are substantially related to that interest. The district court concluded that the magazine ban contained in Proposition 63 did not, and the Panel agreed. The decision also found that the preliminary injunction was proper under a Takings Clause challenge.

The case is set to go to trial in the near future. While this can be perceived as a win for California gun owners, it is only temporary. The trial may result in a permanent injunction being issued which, as was the case with the preliminary injunction, can be appealed to the Ninth Circuit. Alternatively, the district court could find in favor of the state, which would still allow the Plaintiffs to appeal to the Ninth Circuit. Regardless of the outcome at the district court, you can likely count on an appeal.


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 and The Gun Collective Podcast. He was also the general manager of a gun store in the suburbs of Philadelphia.

Instagram: @theadamkraut
Twitter: @theadamkraut

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