Yesterday a Federal Judge ruled that California's magazine ban is unconstitutional and cannot be enforced.
VIRGINIA DUNCAN v. XAVIER BECERRA, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
In one year in California (2017), a population of 39 million people endured 56,609 robberies, 105,391 aggravated assaults, and 95,942 residential burglaries.5 There were also 423 homicides in victims’ residences.6 There were no mass shootings in 2017. Nationally, the first study to assess the prevalence of defensive gun use estimated that there are 2.2 to 2.5 million defensive gun uses by civilians each year. Of those, 340,000 to 400,000 defensive gun uses were situations where defenders believed that they had almost certainly saved a life by using the gun.7 Citizens often use a gun to defend against criminal attack. A Special Report by the U.S. Department of Justice, Bureau of Justice Statistics published in 2013, reported that between 2007 and 2011 “there were 235,700 victimizations where the victim used a firearm to threaten or attack an offender.”8 How many more instances are never reported to, or recorded by, authorities? According to another U.S. Department of Justice, Bureau of Justice Statistics, Special Report, for each year between 2003 and 2007, an estimated 266,560 burglaries occurred during which a person at home became a victim of a violent crime or a “home invasion.”9 “Households composed of single females with children had the highest rate of burglary while someone was at home.”10 Of the burglaries by a stranger where violence occurred, the assailant was armed with a firearm in 73,000 instances annually (on average).11 During a burglary, rape or sexual assault occurred 6,387 times annually (on average), while a homicide occurred approximately 430 times annually (on average).12
Magazines holding more than 10 rounds are “arms.” California Penal Code Section 32310, as amended by Proposition 63, burdens the core of the Second Amendment by criminalizing the acquisition and possession of these magazines that are commonly held by law-abiding citizens for defense of self, home, and state. The regulation is neither presumptively legal nor longstanding. The statute hits at the center of the Second Amendment and its burden is severe. When the simple test of Heller is applied, a test that persons of common intelligence can understand (that rules out the DIM WIT, he is WAY BELOW "common intelligence")
, the statute fails and is an unconstitutional abridgment. It criminalizes the otherwise lawful acquisition and possession of common magazines holding more than 10 rounds – magazines that lawabiding responsible citizens would choose for self-defense at home. It also fails the strict scrutiny test because the statute is not narrowly tailored – it is not tailored at all. Even under the more forgiving test of intermediate scrutiny, the statute fails because it is not a reasonable fit. It is not a reasonable fit because, among other things, it prohibits lawabiding concealed carry weapon permit holders and law-abiding U.S Armed Forces veterans from acquiring magazines and instead forces them to dispossess themselves of lawfully-owned gun magazines that hold more than 10 rounds or suffer criminal penalties. Finally, subsections (c) and (d) of § 32310 impose an unconstitutional taking without compensation upon Plaintiffs and all those who lawfully possess magazines able to hold more than 10 rounds.
Accordingly, based upon the law and the evidence, upon which there is no genuine issue, and for the reasons stated in this opinion, Plaintiffs’ motion for summary judgment is granted. California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.
4 Robin Reese, Georgia Mom Shoots Home Invader, Hiding With Her Children, ABC News (Jan. 8, 2013), https://abcnews.go.com/US/georgia-mom-hiding-kids-shootsintruder/story?id=18164812
(last viewed Mar. 22, 2019) (includes video and recording of 911 call). Although this news account is not in the parties’ exhibits, it is illustrative.
5 Xavier Becerra, Crime in California (2017) and Homicide in California (2017), (https://openjustice.doj.ca.gov/resources/publications). Under Rules of Evidence 201(b) courts may take judicial notice of some types of public records, including reports of administrative bodies.
7 See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self–Defense with a Gun, 86 J. Crim. L. & Criminology 150, 164, 177 (1995) (cited in Heller v. D.C. (Heller II), 670 F.3d 1244, 1262 (D.C. Cir. 2011).
8 See Planty, Michael and Truman, Jennifer, Firearm Violence, 1993-2011 (2013), at p.11 and Table 11 www.bjs.gov/content/pub/pdf/fv9311.pdf (last visited Mar. 19, 2019). Under Rules of Evidence 201(b) courts may take judicial notice of some types of public records, including reports of administrative bodies.
9 Catalano, Shannan, Victimization During Household Burglary, U.S. D.O.J., Bureau of Justice Statistics (Sept. 2010) https://www.bjs.gov/content/pub/pdf/vdhb.pdf
(last visited Mar. 28, 2019). Under Rules of Evidence 201(b) courts may take judicial notice of some types of public records, including reports of administrative bodies.
10 Id. at p.3.
11 Id. at p.10.