Duncan v. Becerra
This text of 366 F. Supp. 3d 1131 (Duncan v. Becerra) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DECLARING CALIFORNIA PENAL CODE § 32310 UNCONSTITUTIONAL and ENJOINING ENFORCEMENT
HON. ROGER T. BENITEZ, United States District Judge *1134Individual liberty and freedom are not outmoded concepts. "The judiciary is - and is often the only - protector of individual rights that are at the heart of our democracy." -- Senator Ted Kennedy, Senate Hearing on the Nomination of Robert Bork, 1987.1
I. INTRODUCTION
As two masked and armed men broke in, Susan Gonzalez was shot in the chest. She made it back to her bedroom and found her husband's .22 caliber pistol. Wasting the first rounds on warning shots, she then emptied the single pistol at one attacker. Unfortunately, now out of ammunition, she was shot again by the other armed attacker. She was not able to re-load or use a second gun. Both she and her husband were shot twice. Forty-two bullets in all were fired. The gunman fled from the house-but returned. He put his gun to Susan Gonzalez's head and demanded the keys to the couple's truck.2
When three armed intruders carrying what look like semi-automatic pistols broke into the home of a single woman at 3:44 a.m., she dialed 911. No answer. Feng Zhu Chen, dressed in pajamas, held a phone in one hand and took up her pistol in the other and began shooting. She fired numerous shots. She had no place to carry an extra magazine and no way to reload because her left hand held the phone with which she was still trying to call 911. After the shooting was over and two of the armed suspects got away and one lay dead, she did get through to the police. The home security camera video is dramatic.3
A mother, Melinda Herman, and her nine-year-old twins were at home when an intruder broke in. She and her twins retreated to an upstairs crawl space and hid. Fortunately, she had a .38 caliber revolver. She would need it. The intruder worked his way upstairs, broke through a locked bedroom door and a locked bathroom door, and opened the crawl space door. The family was cornered with no place to run. He stood staring at her and her two children. The mother shot six times, hitting the intruder five times, when she ran out of ammunition. Though injured, the intruder was not incapacitated. Fortunately, he decided to flee.4
*1135A. A Need for Self-Defense
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
Fortunately, the Second Amendment protects a person's right to keep and bear firearms. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. "As interpreted in recent years by the Supreme Court, the Second Amendment protects 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.' "
*1136Teixeira v. Cty. of Alameda ,
As evidenced by California's own crime statistics, the need to protect one's self and family from criminals in one's home has not abated no matter how hard they try. Law enforcement cannot protect everyone. "A police force in a free state cannot provide everyone with bodyguards. Indeed, while some think guns cause violent crime, others think that wide-spread possession of guns on balance reduces violent crime.
Free access — add to your briefcase to read the full text and ask questions with AI
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DECLARING CALIFORNIA PENAL CODE § 32310 UNCONSTITUTIONAL and ENJOINING ENFORCEMENT
HON. ROGER T. BENITEZ, United States District Judge *1134Individual liberty and freedom are not outmoded concepts. "The judiciary is - and is often the only - protector of individual rights that are at the heart of our democracy." -- Senator Ted Kennedy, Senate Hearing on the Nomination of Robert Bork, 1987.1
I. INTRODUCTION
As two masked and armed men broke in, Susan Gonzalez was shot in the chest. She made it back to her bedroom and found her husband's .22 caliber pistol. Wasting the first rounds on warning shots, she then emptied the single pistol at one attacker. Unfortunately, now out of ammunition, she was shot again by the other armed attacker. She was not able to re-load or use a second gun. Both she and her husband were shot twice. Forty-two bullets in all were fired. The gunman fled from the house-but returned. He put his gun to Susan Gonzalez's head and demanded the keys to the couple's truck.2
When three armed intruders carrying what look like semi-automatic pistols broke into the home of a single woman at 3:44 a.m., she dialed 911. No answer. Feng Zhu Chen, dressed in pajamas, held a phone in one hand and took up her pistol in the other and began shooting. She fired numerous shots. She had no place to carry an extra magazine and no way to reload because her left hand held the phone with which she was still trying to call 911. After the shooting was over and two of the armed suspects got away and one lay dead, she did get through to the police. The home security camera video is dramatic.3
A mother, Melinda Herman, and her nine-year-old twins were at home when an intruder broke in. She and her twins retreated to an upstairs crawl space and hid. Fortunately, she had a .38 caliber revolver. She would need it. The intruder worked his way upstairs, broke through a locked bedroom door and a locked bathroom door, and opened the crawl space door. The family was cornered with no place to run. He stood staring at her and her two children. The mother shot six times, hitting the intruder five times, when she ran out of ammunition. Though injured, the intruder was not incapacitated. Fortunately, he decided to flee.4
*1135A. A Need for Self-Defense
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
Fortunately, the Second Amendment protects a person's right to keep and bear firearms. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. "As interpreted in recent years by the Supreme Court, the Second Amendment protects 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.' "
*1136Teixeira v. Cty. of Alameda ,
As evidenced by California's own crime statistics, the need to protect one's self and family from criminals in one's home has not abated no matter how hard they try. Law enforcement cannot protect everyone. "A police force in a free state cannot provide everyone with bodyguards. Indeed, while some think guns cause violent crime, others think that wide-spread possession of guns on balance reduces violent crime. None of these policy arguments on either side affects what the Second Amendment says, that our Constitution protects 'the right of the people to keep and bear Arms.' " Silveira v. Lockyer ,
B. Are 10 Rounds Always Enough?
If a law-abiding, responsible citizen in California decides that a handgun or rifle with a magazine larger than 10 rounds is the best choice for defending her hearth and home, may the State deny the choice, declare the magazine a "nuisance," and jail the citizen for the crime of possession? The Attorney General says that is what voters want in hopes of preventing a rare, but horrible, mass shooting. The plaintiffs, who are also citizens and residents of California, say that while the goal of preventing mass shootings is laudable, banning the acquisition and possession of magazines holding more than 10 rounds is an unconstitutional experiment that poorly fits the goal. From a public policy perspective, the choices are difficult and complicated. People may cede liberty to their government in exchange for the promise of safety. Or government may gain compliance from its people by forcibly disarming all.13 In the United States, the Second Amendment takes the legislative experiment off the table.14 Regardless of current popularity, *1137neither a legislature nor voters may trench on constitutional rights. "An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity." Silveira , 312 F.3d at 1091.
C. Mass Shooting vs. Common Crimes
When they occur, mass shootings are tragic. Innocent lives are senselessly lost while other lives are scarred forever. Communities are left shaken, frightened, and grieving. The timeline of the tragedy, the events leading up to the shooting, and the repercussions on family and friends after the incident, fill the national media news cycle for days, weeks and years. Who has not heard about the Newtown, Connecticut, mass shooting at Sandy Hook Elementary School, or the one at a high school in Parkland, Florida? But an individual victim gets little, if any, media attention, and the attention he or she gets is local and short-lived. For example, who has heard about the home invasion attack on Melinda Herman and her twin nine-year old daughters in Georgia only one month after the Sandy Hook incident?15 Who has heard of the attacks on Ms. Zhu Chen or Ms. Gonzalez and her husband?16 Are the lives of these victims worth any less than those lost in a mass shooting? Would their deaths be any less tragic? Unless there are a lot of individual victims together, the tragedy goes largely unnoticed.
That is why mass shootings can seem to be a common problem, but in fact, are exceedingly rare. At the same time robberies, rapes, and murders of individuals are common, but draw little public notice. As in the year 2017, in 2016 there were numerous robberies, rapes, and murders of individuals in California and no mass shootings.17 Nevertheless, a gubernatorial candidate was successful in sponsoring a statewide ballot measure (Proposition 63). Californians approved the proposition and added criminalization and dispossession elements to existing law prohibiting a citizen from acquiring and keeping a firearm magazine that is able to hold more than 10 rounds. The State now defends the prohibition on magazines, asserting that mass shootings are an urgent problem and that restricting the size of magazines a citizen may possess is part of the solution. Perhaps it is part of the solution.
Few would say that a 100 or 50-round rifle magazine in the hands of a murderer is a good idea. Yet, the "solution" for preventing a mass shooting exacts a high toll on the everyday freedom of ordinary law-abiding citizens. Many individual robberies, rapes, and shootings are not prevented by the State. Unless a law-abiding individual has a firearm for his or her own defense, the police typically arrive after it is too late. With rigor mortis setting in, they mark and bag the evidence, interview bystanders, and draw a chalk outline on the ground. But the victim, nevertheless, is dead, or raped, or robbed, or traumatized.
As Watson County Sheriff Joe Chapman told CNN about Melinda Herman and her twin nine-year-old daughters in the attic (the third incident described above), "[h]ad it not turned out the way that it did, I would possibly be working a triple homicide, not having a clue as to who it is we're *1138looking for."18 The Second Amendment protects the would-be American victim's freedom and liberty to take matters into one's own hands and protect one's self and family until help arrives.
D. California Law Makes it a Crime to Have More Than 10 Rounds
For all firearms, California law allows only the acquisition and possession of magazines that hold ten rounds or less.19 Claiming that the average defensive use of a gun requires firing only 2.2 rounds, the State's voters and legislators have decided that a responsible, law-abiding citizen needs no more than ten rounds to protect one's self, family, home, and property. "No one except trained law enforcement should be able to possess these dangerous ammunition magazines [which hold more than 10 rounds]." Proposition 63; A.G.'s Oppo. to P's Motion for Summary Jgt. , at 20 ("LCMs are not necessary to exercise 'the fundamental right of self defense in the home.' ") (emphasis added); A.G.'s Oppo. to P's Motion for Summary Jgt. , at 21 ("There is simply no study or systematic data to suggest that LCMs are necessary for self-defense.") (emphasis added) (citations omitted). Susan Gonzalez and her husband, the single woman awoken in the night, and the mother home alone with her nine-year-old twin daughters all needed to fire considerably more than 2.2 shots to protect themselves.20 In fact, Gonzalez and the mom of twins ran out of ammunition.
In other words, a Californian may have a pistol with a 10-round magazine in hopes of fighting off a home invasion robbery. But if that Californian grabs a pistol containing a 17-round magazine, it is now the home-defending victim who commits a new crime. That is because California law declares acquisition and possession of a magazine able to hold more than ten rounds (i.e. , a "large capacity magazine" or "LCM") a crime. See
All Californians, like all citizens of the United States, have a fundamental Constitutional right to keep and bear common and dangerous arms. The nation's Founders used arms for self-protection, for the common defense, for hunting food, and as a check against tyranny. Teixeira v. Cty. of Alameda ,
Today, self-protection is most important. In the future, the common defense may once again be most important. Constitutional rights stand through time holding fast through the ebb and flow of current controversy. Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights as bad policy. Bad political ideas cannot be stopped by criminalizing bad political speech.Crime waves cannot be broken with warrantless searches and unreasonable seizures. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California's large-capacity magazine law.
II. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Plaintiffs have challenged California's firearm magazine law as being unconstitutional. They now move for summary judgment. The standards for evaluating a motion for summary judgment are well known and have changed little since discussed by the U.S. Supreme Court thirty years ago in a trilogy of cases ( Celotex Corp. v. Catrett ,
*1142A. The Second Amendment
Plaintiffs contend that there is no genuine dispute that the Second Amendment to the United States Constitution protects the individual right of every law-abiding citizen to acquire, possess, and keep common firearms and their common magazines holding more than 10 rounds - magazines which are typically possessed for lawful purposes. Plaintiffs also contend that the state of California has not carried its burden to demonstrate a reasonable fit between the flat ban on such magazines and its important interests in public safety. Plaintiffs contend that the state's magazine ban thus cannot survive constitutionally-required heightened scrutiny and they are entitled to declaratory and injunctive relief as a matter of law. Plaintiffs are correct.
1. The Supreme Court's Simple Heller Test
In Heller , the U.S. Supreme Court provided a simple Second Amendment test in crystal clear language. It is a test that anyone can understand. 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." District of Columbia v. Heller ,
Millions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense. This is enough to decide that a magazine able to hold more than 10 rounds passes the Heller test and is protected by the Second Amendment. The simple test applies because a magazine is an essential mechanical part of a firearm. The size limit directly impairs one's ability to defend one's self.
Neither magazines, nor rounds of ammunition, nor triggers, nor barrels are specifically mentioned in the Second Amendment. Neither are they mentioned in Heller. But without a right to keep and bear triggers, or barrels, or ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless. Fyock v. City of Sunnyvale ,
Under the simple test of Heller , California's § 32310 directly infringes Second Amendment rights. It 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. And "that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons." Friedman v. City of Highland Park , --- U.S. ----,
This is not to say the simple Heller test will apply to non-hardware firearm regulations such as gun store zoning laws,26 or firearm serial number requirements.27 Cf. Ass'n of N.J. Rifle & Pistol Clubs v. A.G. N.J. ,
2. Commonality
Magazines holding more than 10 rounds are used for self-defense by law-abiding citizens. And they are common.28 Lawful in at least 41 states and under federal law, these magazines number in the millions. Plaintiff's Exh. 1 (James Curcuruto Report), at 3 ("There are at least one hundred million magazines of a capacity of more than ten rounds in possession of American citizens, commonly used for various lawful purposes including, but not limited to, recreational and competitive target shooting, home defense, collecting and hunting.") (emphasis added); Plaintiff's Exh. 2 (Stephen Helsley Report), at 5 ("The result of almost four decades of sales to law enforcement and civilian clients is millions of semiautomatic pistols with a magazine capacity of more than ten rounds and likely multiple millions of magazines for them.") (emphasis added); Fyock ,
The Attorney General argues, even so, that it is permissible to ban common handguns with common magazines holding more than 10 rounds because the possession of firearms with other smaller magazines is allowed.29 But Heller says, "[i]t is no answer to say ... that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e. , long guns) is allowed."
*1145
To the extent that magazines holding more than 10 rounds may be less common within California, it would likely be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. Saying that large capacity magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning. See Friedman v. City of Highland Park, Illinois ,
Since the 1980s, one of the most popular handguns in America has been the Glock 17 pistol, which is designed for, and typically sold with, a 17-round magazine. One of the most popular youth rifles in America over the last 60 years has been the Ruger 10/22. Six million have been sold since it was introduced in 1964. It is designed to use magazines manufactured by Ruger in a variety of sizes: 10-round, 15-round, and 25-round. Over the last three decades, one of the most popular civilian rifles in America is the much maligned AR-15 style rifle. Manufactured with various characteristics by numerous companies, it is estimated that more than five million have been bought since the 1980s. These rifles are typically sold with 30-round magazines. These commonly-owned guns with commonly-sized magazines are protected by the Second Amendment and Heller 's simple test for responsible, law-abiding citizens to use for target practice, hunting, and defense.
3. Lethality is Not the Test
Some say that the use of "large capacity magazines" increases the lethality of gun violence. They point out that when large capacity magazines are used in mass shootings, more shots are fired, more people are wounded, and more wounds are fatal than in other mass shootings.31 That may or may not be true. Certainly, a gun when abused is lethal. A gun holding more than 10 rounds is lethal to more people than a gun holding less than 10 rounds, but it is not constitutionally decisive. Nothing in the Second Amendment makes lethality a factor to consider because a gun's *1146lethality, or dangerousness, is assumed. The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous. "If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous." Caetano v. Massachusetts , --- U.S. ----,
California law presently permits the lethality of a gun with a 10-round magazine. In other words, a gun with an 11-round magazine or a 15-round magazine is apparently too lethal to be possessed by a law-abiding citizen. A gun with a 10-round magazine is not. Missing is a constitutionally-permissible standard for testing acceptable lethality. The Attorney General offers no objective standard. Heller sets out a commonality standard that can be applied to magazine hardware: is the size of the magazine "common"? If so, the size is constitutionally-protected.
If the "too lethal" standard is followed to its logical conclusion, the government may dictate in the future that a magazine of eight rounds is too lethal. And after that, it may dictate that a gun with a magazine holding three rounds is too lethal since a person usually fires only 2.2 rounds in self-defense. This stepped-down approach may continue32 until the time comes when government declares that only guns holding a single round are sufficiently lacking in lethality that they are both "safe" to possess and powerful enough to provide a means of self-defense.33
*1147As a matter of public policy, people can debate who makes the decision about how much lethality a citizen can possess. As policy, the State says a law-abiding, responsible person needs only 10 rounds. If you judge for yourself that you will need more than 10 rounds, however, the crime is yours. And, too bad if you complied with the law but needed 11 rounds to stop an attacker, or a group of attackers, or a mob. Now, you are dead. By living a law-abiding, responsible life, you have just become another "gun violence" statistic. And your statistic may be used to justify further restrictions on gun lethality for future law-abiding citizens.
4. Conclusion Under Heller Test
In Heller , the Supreme Court held that the Second Amendment protects an individual right to possess a "lawful firearm in the home operable for the purpose of immediate self-defense.' " Pena v. Lindley ,
California's law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny. Jackson v. City & Cty. of S.F. ,
*1148California's ban goes farther than did the District of Columbia's ordinance in Heller. With respect to long guns, in the Heller case, while a citizen was required to keep his or her self-defense firearm inoperable, he or she could still possess the rifle - yet it failed the simple Heller test. Jackson v. City & Cty. of San Francisco , --- U.S. ----,
The California ban leaves no room for an ordinary citizen to acquire, keep, or bear a larger capacity magazine for self-defense. There are no permitted alternative means to possess a firearm holding more than 10 rounds for self-defense, regardless of the threat. Compare, e.g., Wilson v. Lynch ,
In addition to their usefulness for self-defense in the home, of course, larger capacity magazines are also lawful arms from home with which militia members would report for duty. Consequently, possession of a larger capacity magazine is also categorically protected by the Second Amendment under United States v. Miller ,
B. The Historical Prohibitions Exception
The State argues that the Heller test is a non-issue because the Heller test does not apply to historically-accepted prohibitions on Second Amendment rights. Large capacity magazines have been the subject of regulations since the 1930s according to the State. Based on this view of history, the State asserts that magazine capacity regulations are historically accepted laws beyond the reach of the Second Amendment. If its historical research is accurate, the State would have an argument. "At the first step of the inquiry, 'determining the scope of the Second Amendment's protections requires a textual and historical analysis of the amendment.' " Teixeira v. Cty. of Alameda ,
History shows, however, restrictions on the possession of firearm magazines of any size have no historical pedigree. To begin with the regulation at issue,
The oldest statute limiting the permissible size of a detachable firearm magazine, on the other hand, is quite young. In 1990, New Jersey introduced the first ban on detachable magazines, banning magazines holding more than 15 rounds. N.J.S. 2C:39 (1990). Eight other states eventually followed. The federal government first regulated detachable magazines in 1994. The federal statute addressed magazines holding more than 10 rounds but lapsed in 2004 and has not been replaced.
To sum up, then, while detachable firearm magazines have been common for a century, government regulation of the size of a magazine is a recent phenomenon and still unregulated in four-fifths of the states. The record is empty of the persuasive historical evidence needed to place a magazine ban outside the ambit of the Second Amendment. Thus, it can be seen that California's prohibition on detachable ammunition magazines larger than 10 rounds is a type of prohibition that has not been historically accommodated by the Second Amendment.
*1150Faced with a dearth of magazine capacity restrictions older than 1990, the Attorney General pivots and tries a different route. He argues that the historical prohibition question is not one of detachable magazine size, but instead is a question of firearm "firing-capacity." With this change of terms and shift of direction, the Attorney General contends that firearm firing-capacity restrictions have been subject to longstanding regulation dating back to the 1920s. Yet, even his new focus falters under a close look at the historical record.
First, firearms with a firing-capacity of more than 10 rounds existed long before the 1920s. Plaintiff's Exh. 2 (Stephen Helsley Report), at 4 ("Firearms with a capacity exceeding10-rounds date to the 'dawn of firearms.' In the late-l5th Century, Leonardo Da Vinci designed a 33-shot weapon. In the late 17th Century, Michele Lorenzoni designed a practical repeating flintlock rifle .... Perhaps the most famous rifle in American history is the one used by Lewis and Clark on their 'Corps of Discovery" expedition between 1803 and 1806-the magazine for which held twenty-two .46 caliber balls. Rifles with fixed magazines holding 15-rounds were widely used in the American Civil War. During that same period, revolvers with a capacity of 20-rounds were available but enjoyed limited popularity because they were so ungainly."). Yet, despite the existence of arms with large firing-capacity during the time of the adoption of the Second Amendment, more than a century passed before a firing-capacity law was passed.
It is interesting to note that during the Nation's founding era, states enacted regulations for the formation and maintenance of citizen militias. Three such statutes are described in United States v. Miller ,
The Attorney General makes no mention of the founding-era militia firing-capacity minimum requirements. Instead he focuses on a handful of Thompson machine gun-era statutes. In 1927, Michigan passed a restriction on firearms with a firing-capacity over 16 rounds. Rhode Island restricted arms with a firing-capacity over 12 rounds. Ohio began licensing firearms with a firing-capacity over 18 rounds in 1933. All were repealed. The District of Columbia first restricted firearms with a firing-capacity of 12 or more rounds in 1932. None of these laws set the limit as low as ten.
The Attorney General names five additional states that enacted firing-capacity restrictions in the 1930s with capacity limits less than 10 rounds. But he is not entirely accurate. His first example is not an example, at all. For his first example, *1151he says that, "[i]n 1933, South Dakota banned any 'weapon from which more than five shots or bullets may be rapidly or automatically, or semi-automatically discharged from a magazine [by a single function of the firing device].' " Def's Oppo. (4/9/18) at 4 (emphasis in original). Actually, this was not a ban. This was South Dakota's definition of a machine gun. S.D. Ch. 206 (S.B. 165) Enacting Uniform Machine Gun Act , § 1 (1933), Exh. A to Def.'s Request for Judicial Notice (filed 4/9/18) (" 'Machine Gun' applies to and includes a weapon of any description by whatever name known, loaded or unloaded, from which more than five shots or bullets may be rapidly, or automatically, or semi-automatically discharged from a magazine, by a single function of the firing device."). In fact, the statute did not ban machine guns. The statute did not criminalize mere possession (except by a felon or by an unnaturalized foreign-born person). Unlike
The Attorney General's second example of a longstanding firing-capacity prohibition is a Virginia ban enacted in 1934. However, like the first South Dakota example, the second example is not an example, at all. The Attorney General describes the law as a ban on firearms that discharge seven rounds rapidly. It is not ban. It also defines "machine gun."35 It criminalizes the offensive/aggressive possession of a machine gun36 and it imposes a death penalty for possessing/using a machine gun in the perpetration of a crime of violence.37 However, most importantly, like the 1933 South Dakota statute, the 1934 Virginia statute protected a law-abiding citizen's right to possess a machine gun for self-defense and defense of home and family and any other purpose not manifestly aggressive or offensive.38 As discussed *1152above, California's § 32310, in criminalizing possession of magazines holding more than 10 rounds, makes no distinction between use for an offensive purpose and use for a defensive purpose. So much for the second example.
The Attorney General's final three examples are state machine gun bans. The first cited is an Illinois enactment (in 1931) described as, "An Act to Regulate the Sale, Possession and Transportation of Machine Guns." Ex. C to Def.'s Request for Judicial Notice (filed 4/9/18). Louisiana enacted (in 1932) Act No. 80, the second cited, which likewise was passed "to regulate the sale, possession and transportation of machine guns." Ex. D to Def.'s Request for Judicial Notice (filed 4/9/18). The third cited example is like the first two. It is an Act passed by the South Carolina legislature in 1934 titled, An Act Regulating the Use and Possession of Machine Guns. Ex. E to Def.'s Request for Judicial Notice (filed 4/9/18). These three statutes are examples of machine gun bans that are prohibited because of their ability to continuously fire rounds with a single trigger pull, rather than their overall firing-capacity.
Machine guns39 have been subject to federal regulation since the enactment of the National Firearms Act of 1934. See Sonzinsky v. United States ,
To reiterate, the earliest regulation of a detachable ammunition magazine limit occurred *1153in New Jersey in 1990 and limited the number of rounds to a maximum of 15. The earliest federal restriction on a detachable magazine was enacted in 1994, limited the maximum number of rounds to 10, and expired after ten years. As to the Attorney General's alternate argument about "firing-capacity," the earliest firing-capacity regulation appeared in the 1920s and 1930s in three states (Michigan, Rhode Island, and Ohio) and affected firearms able to fire more than 18, 16, or 12 rounds, depending on the state. No regulation on "firing-capacity" set a limit as low as California's 10-round limit. Each was repealed and thus not longstanding. Two more states (North Dakota and Virginia) defined a machine gun. Interestingly, while penalizing machine gun use when purposed for aggressive or offensive use, both states also protected citizen machine gun possession for defensive use or any other use that was not manifestly aggressive or offensive. Three other states (Illinois, Louisiana, and South Carolina) simply defined and banned machine guns altogether. The District of Columbia appears to be the single jurisdiction where a firing-capacity restriction has been in place since the 1930s. Even there, the limit was not as low as California's limit of 10 rounds.
On this record, there is no longstanding historically-accepted prohibition on detachable magazines of any capacity. Ass'n of N.J. Rifle & Pistol Clubs v. A.G. N.J. ,
Moreover, there is no longstanding historically-accepted prohibition on firearms according to their "firing-capacity" except in the case of automatic fire machine guns. On the other hand, there is an indication that founding-era state regulations, rather than restricting ammunition possession, mandated citizens of militia age to equip themselves with ready ammunition in amounts of at least 20 rounds.
C. The Heightened Scrutiny Test
1. Failing the Simple Heller Test
Section 32310 runs afoul of the Second Amendment under the simple Heller test. It fails the Heller test because it criminalizes a law-abiding citizen's possession of a common magazine that is used for lawful purposes and prohibits its use for self-defense in and around the home. It strikes at the core of the inalienable Constitutional right and disenfranchises approximately 39 million state residents.
This conclusion should not be considered groundbreaking. It is simply a straightforward application of constitutional law to an experimental governmental overreach that goes far beyond traditional boundaries of reasonable gun regulation. That § 32310 was not challenged earlier is due in part to the Ninth Circuit's pre- Heller understanding that an individual lacked Second Amendment rights and thus lacked Article III standing to challenge gun regulations. See Silveira v. Lockyer ,
The magazine ban arbitrarily selects 10 rounds as the magazine capacity over which possession is unlawful. The magazine ban admits no exceptions, beyond those for law enforcement officers, armored truck guards, and movie stars. The ban does not distinguish between citizens living in densely populated areas and sparsely populated areas of the state. The ban does not distinguish between citizens who have already experienced home invasion robberies, are currently threatened by neighborhood burglary activity, and those who have never been threatened. The ban does not distinguish between the senior citizen, the single parent, and the troubled and angry high school drop-out. Most importantly, the ban does not distinguish between possession in and around one's home, and possession in or around outdoor concerts, baseball fields, or school yards. The ban on magazines that hold more than 10 rounds amounts to a prohibition on an entire class of "arms" that is overwhelmingly chosen by American citizens for the lawful purpose of self-defense. The prohibition extends to one's home where the need to defend self, family, and property is most acute. And like the ban struck down in Heller , the California ban threatens citizens, not with a minor fine, but a substantial criminal penalty. Heller ,
2. The Tripartite Binary Test with a Sliding Scale and a Reasonable Fit
Beyond the simple Heller test, for a Second Amendment question, the Ninth *1155Circuit uses what might be called a tripartite binary test with a sliding scale and a reasonable fit. In other words, there are three different two-part tests, after which the sliding scale of scrutiny is selected. Most courts select intermediate scrutiny in the end. Intermediate scrutiny, in turn, looks for a "reasonable fit." It is an overly complex analysis that people of ordinary intelligence cannot be expected to understand. It is the wrong standard. But the statute fails anyhow.
a. burden & scrutiny
First, a court must evaluate the burden and then apply the correct scrutiny. United States v. Torres ,
b. presumptively lawful or historical regulation
In determining whether a given regulation falls within the scope of the Second Amendment under the first step of this inquiry, another two-step test is used. "[W]e ask whether the regulation is one of the 'presumptively lawful regulatory measures' identified in Heller , or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment."
Section 32310 fails both parts of the test. A complete ban on ammunition magazines of any size is not one of the presumptively lawful regulatory measures identified in Heller . As discussed, neither is there any evidence that magazine capacity restrictions have a historical pedigree.
c. closeness to the core and severity of the burden
If the constitutional inquiry may continue, then the correct level of scrutiny must be selected. For that selection a third two-step evaluation is required. The first step measures how close the statute hits at the core of the Second Amendment right. The second step measures how severe the statute burdens the Second Amendment right. "Because Heller did not specify a particular level of scrutiny for all Second Amendment challenges, courts determine the appropriate level by considering '(1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on that right.' " Bauer v. Becerra ,
*1156Fyock v. Sunnyvale ,
Heller says the core of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of their home.
d. the sliding scale of scrutiny - strict scrutiny
Further down the scale, a law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny . Pena v. Lindley ,
A complete ban on a 100-round or 50-round magazine may be a mild burden. An annual limit on the number of larger capacity magazines that a citizen may purchase might place a moderate burden. A serial number requirement for the future manufacturing, importing, or selling of larger capacity magazines would not be a severe burden. Requiring a background check for purchasers of larger-capacity magazines may or may not be a severe burden. See e.g., Heller II ,
But California's ban is far-reaching, absolute, and permanent. The ban on acquisition and possession on magazines able to hold more than 10 rounds, together with the substantial criminal penalties threatening a law-abiding, responsible, citizen who desires such magazines to protect hearth and home, imposes a burden on the constitutional right that this Court judges as severe. Cf. Peruta v. Cty. of San Diego ,
Some have said that the burden is minor because there are other choices. E.g., Fyock v. City of Sunnyvale ,
Others have acknowledged that the burden on a citizen may be severe but consider it a worthwhile tradeoff. San Francisco Veteran Police Officers Ass'n v. City & Cty. of San Francisco ,
While Chovan instructs that the level of scrutiny depends on closeness to the core and "the severity of the law's burden," it offers no guide to evaluating the burden. United States v. Chovan ,
The State argues that the Ninth Circuit has already determined as a matter of law that intermediate scrutiny applies to large-capacity magazine bans, citing Fyock ,
That the assessment of Sunnyvale's ban was fact-bound is illustrated by its immediately preceding sentence, where the Fyock court noted the Sunnyvale ban permitted possession of large-capacity magazines for use with some firearms.
Section 32310's wide ranging ban with its acquisition-possession-criminalization components exacts a severe price on a citizen's freedom to defend the home. Consequently, § 32310 merits strict judicial scrutiny. "A law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny." Silvester v. Harris ,
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. Mance v. Sessions ,
More certain, however, is that the ban is not narrowly tailored or the least restrictive means of achieving these interests. Instead it is a categorical ban on acquisition and possession for all law-abiding, responsible, ordinary citizens. Categorical bans are the opposite of narrowly tailored bans. The § 32310 ban on possession applies to areas in the state where large groups gather and where no one gathers. It applies to young persons with long rap sheets and to old persons with no rap sheets. It applies to draft dodgers and to those who have served our country. It applies to those who would have 1000 large magazines for a conflagration and to those who would have one large magazine for self-defense. It applies to perpetrators as well as it applies to those who have been victims. It applies to magazines holding large, powerful rounds and to magazines holding small, more-impotent rounds. It applies to rifles with bump-stocks and pistols for purses.
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. As such, § 32310 fails strict scrutiny and violates the Second Amendment. Cf. Mance v. Sessions ,
e. intermediate scrutiny
Even under the lowest formulation of heightened scrutiny, intermediate scrutiny, Section § 32310 fails because it is not a reasonable fit. Cf. Morris v. U.S. Army Corps of Engineers ,
i. tailoring required: "a reasonable fit"
To pass intermediate scrutiny, a statute must still be a reasonable fit. "Our intermediate scrutiny test under the Second Amendment requires that (1) the government's stated objective ... be significant, substantial, or important; and (2) there ... be a 'reasonable fit' between the challenged regulation and the asserted objective." Silvester ,
For intermediate scrutiny "the burden of justification is demanding and it rests entirely on the State." Tyler v. Hillsdale County Sheriff's Dept. ,
ii. four important California interests
In this case, the Attorney General identifies four State interests or objectives. Each is important. The State interests are:
*1161(1) protecting citizens from gun violence; (2) protecting law enforcement from gun violence; (3) protecting the public safety (which is like protecting citizens and law enforcement from gun violence); and (4) preventing crime. See Oppo. at 9; 17-18. The question then becomes, whether § 32310's ban on acquisition and possession of firearm magazines holding more than 10 rounds is a reasonable fit for achieving these important goals. This Court finds on the evidentiary record before it that § 32310-the prohibition on magazines able to hold more than 10 rounds and the acquisition-possession-criminalization components of § 32310-is not a reasonable fit.
The Attorney General says that empirical evidence is not required to shoulder his burden. Oppo. at 19. He says that the required substantial evidence demonstrating a reasonable fit can take other, softer forms such as "history, consensus, and simple common sense," as well as "correlation evidence" and even simply "intuition." Oppo. at 19-20. Intuition? If this variety of softer "evidence" were enough, all firearm restrictions except an outright ban on all firearms would survive review. Yet, as the Second Circuit cautioned, "on intermediate scrutiny review, the state cannot 'get away with shoddy data or reasoning.' To survive intermediate scrutiny, the defendants must show 'reasonable inferences based on substantial evidence' that the statutes are substantially related to the governmental interest." New York State Rifle & Pistol Ass'n, Inc. v. Cuomo ,
iii. the State's evidence
The State's theoretical and empirical evidence is not persuasive. Why 10 rounds as a limit? The State has no answer. Why is there no thought given to possession in and around a home? It is inconclusive at best. In fact, it is reasonable to infer, based on the State's own evidence, that a right to possess magazines that hold more than 10 rounds may promote self-defense - especially in the home - as well as being ordinarily useful for a citizen's militia use. California must provide more than a rational basis to justify its sweeping ban. See e.g., Moore v. Madigan ,
Mass shootings are tragic. But they are rare events. And of these rare events, many are committed without large capacity magazines. For example, in the two high school incidents in 2018 one assailant used a shotgun and a .38 revolver (at Santa Fe High School, Santa Fe, Texas) while the other used an AR-15-style rifle but with 10-round magazines (at Stoneman Douglas High School in Parkland, Florida). In the attack at the Capital Gazette newspaper (Annapolis, Maryland), 5 people were killed and 2 injured by an assailant with a shotgun and smoke grenades. The Attorney General has not supplemented the record with a police report of the single mass shooting in California last year (at the *1162Borderline Bar and Grill in Thousand Oaks, California). However, press reports indicate the shooter used a legally purchased pistol with an "extended" magazine.44 Another report said seven 30-round magazines were found at the scene.45 Eighteen years of a state ban on acquiring large-capacity magazines did not prevent the assailant from obtaining and using the banned devices. The news pieces do not report witnesses describing a "critical pause" when the shooter re-loaded. And the stories do not say where or how the 30-round magazines were acquired.
The findings from the Mayors Against Illegal Guns survey 2009-2013 (AG Exhibit 17), were addressed in the Order of June 28, 2017. See also, AG Oppo. To Mot PI , Gordon Declaration Exh. 59. The observations are still true. "To sum up, of the 92 mass killings occurring across the 50 states between 2013 and 2009, only ten occurred in California. Of those ten, the criminalization and dispossession requirements of § 32310 would have had no effect on eight of the shootings, and only marginal good effects had it been in effect at the time of the remaining two shootings. On this evidence, § 32310 is not a reasonable fit. It hardly fits at all. It appears on this record to be a haphazard solution likely to have no effect on an exceedingly rare problem, while at the same time burdening the Constitutional rights of many other California law-abiding responsible citizen-owners of gun magazines holding more than 10 rounds."
In opposition to the motion for summary judgment, the state attempts to bolster the data from the Mayors' survey with a Mother Jones Magazine 36-year survey of mass shootings from 1982 to 2018. See Oppo. to MSJ Exhibit 16.46 The Mother Jones findings *1163are even less convincing than those from the Mayors' survey. Mother Jones Magazine lists 98 mass shooting events in the last 36 years. This is an average of 2.72 events per year in the entire United States. Of the 98 events over the last 36 years, 17 took place in California. This is an average of one event every two years in the most populous state in the nation.
According to data from this 36-year survey of mass shootings, California's prohibition on magazines holding more than 10 rounds would have done nothing to keep a shooter from shooting more than 10 rounds. That is because normally the perpetrator brings multiple weapons.47 The more weapons, the greater the firepower and the greater the potential for casualties. In 14 of the 17 California mass shooting events, multiple weapons were brought. For example, in the 1988 mass shooting event in Sunnyvale, the shooter brought two pistols, two revolvers, two shotguns, and a bolt action rifle (all obtained legally). No large capacity magazines were used. See AG Exh.16, at 73648 ; DX-10 at 517 (Appendix B, Case No.91).
California's large capacity magazine prohibition also had no effect on the three single weapon mass shooting events. In the Fresno event in April 2017, a revolver was used. For those unschooled on firearms, a revolver does not use a magazine of any size. In the next mass shooting event in Oakland in April 2012, the shooter used a pistol with four California-legal 10-round magazines. In the third mass shooting event in Goleta in January 2006, the shooter did use a pistol with a 15-round magazine.49 However, the shooter resided in New Mexico. She purchased the firearm and its 15-round magazine legally in New Mexico. She then traveled into California to Goleta to the postal facility where she had been employed three years prior. By 2006, California already prohibited a person *1164from bringing into the state a large capacity magazine, but it did not prevent the Goleta tragedy from taking place.
In fact, only three of the 17 California mass shooting events reported in the Mother Jones 36-year survey featured a large capacity magazine used by the shooter. One is the Goleta event described above where the magazine was legally purchased in another state and illegally brought into California. The second event is like the Goleta event. In San Francisco June 2017, a perpetrator used two pistols, both stolen. One pistol had a 30-round magazine.50 This firearm was reported stolen in Utah and must have been illegally imported into California.51 The other pistol had been reported stolen in California, but news reports do not mention a large capacity magazine.52 It bears noting that California's large capacity magazine prohibition did not prevent these mass shootings.
The third event is the Santa Monica June 2013 event where the shooter was armed with multiple firearms and 40 large-capacity magazines. As the Court pointed out in its earlier order, in the Santa Monica incident, the shooter brought multiple firearms. He used an AR-15, a revolver, and 3 zip guns. He reportedly possessed forty 30-round magazines. He killed five victims. The survey notes that the AR-15 and the illegal magazines may have been illegally imported from outside of California. Receiving and importing magazines holding any more than 10 rounds was already unlawful under California law at the time of the Santa Monica tragedy. In that instance, criminalizing possession of magazines holding any more than 10 rounds likely would not have provided any additional protection from gun violence for citizens or police officers. Nor would it have prevented the crime.
To summarize, 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.
Some would say that this straight up reading and evaluation of the State's main evidence places "too high [an] evidentiary burden for the state.' " Duncan v. Becerra ,
For example, according to this view, the Mayors' survey "easily satisfies" the state's evidentiary burden.
Where did this idea come from, the idea that a court is required to fully credit evidence only "reasonably believed to be relevant?" Fyock ,
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.53
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. Instead, the Attorney General relies on news articles and interest group surveys. Federal Constitutional rights are being subjected to litigation by inference about whether a pistol or a rifle in a news story might have had an ammunition magazine that held more than 10 rounds. This *1166is not conflating legislative findings with evidence in the technical sense. This is simply evaluating the empirical robustness of evidence in the same objective way used every day by judges everywhere. Perhaps this is one more reason why the Second Amendment has been described as "the Rodney Dangerfield of the Bill of Rights." Mance v. Sessions ,
According to Pena , "[w]e do not substitute our own policy judgment for that of the legislature," protests the Attorney General. Pena ,
This case is about a muscular constitutional right and whether a state can impinge and imprison its citizens for exercising that right. This case is about whether a state objective is possibly important enough to justify the impingement. The problem with according deference to the state legislature in this kind of a case, as in the Turner Broadcasting approach, is that it is exactly the approach promoted by dissenting Justice Breyer and rejected by the Supreme Court's majority in Heller .54 Yet, Turner deference arguments live on like legal zombies lurching through Second Amendment jurisprudence.
Even with deference, meaningful review is required. "Although we do accord substantial deference to the predictive judgments of the legislature when conducting intermediate scrutiny, the State is not thereby insulated from meaningful judicial review." Heller v. District of Columbia ,
*1167See Turner II ,
There is another problem with according deference in this case. Strictly put, this case in not solely about legislative judgments because § 32310(c) and (d) are the products of a ballot proposition. No federal court has deferred to the terms of a state ballot proposition where the proposition trenches on a federal constitutional right:
As one court stated, no court has accorded legislative deference to ballot drafters. Legislatures receive deference because they are better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon complex and dynamic issues. Because the referendum process does not invoke the same type of searching fact finding, a referendum's fact finding does not "justify deference."
Vivid Entm't, LLC v. Fielding ,
In this case, as in Scully , California argues that Turner Broadcasting requires deference be given to the predictive judgments embodied in its statute. The Scully court rejected the approach. It reasoned persuasively:
[T]he deference formulation, however, ignores the context of the quotation which requires federal courts to "accord substantial deference to the predictive judgments of Congress." Thus, the deference recognized in Turner is the consequence, at least in part, of the constitutional delegation of legislative power to a coordinate branch of government, a factor not present in the instant case. Of course, this is not to say that the predictive judgments of state legislatures are not entitled to due weight. It would seem odd, however, that this court would be required to give greater deference to the implied predictive judgments of a state's legislation than the state's own courts would. In this regard, California courts accord deference to the predictive judgments of their legislature on a sliding scale, according significant deference to economic judgments, but employing "greater judicial scrutiny" "when an enactment intrudes upon a constitutional right." It is of course true that deference in the federal courts is not simply a function of the separation of powers doctrine. It also rests upon the legislative branch being "better equipped than the judiciary to 'amass and evaluate the vast amounts of data'
*1168bearing upon ... complex and dynamic" issues. Once again, given that the statutes at bar are the product of the initiative process, their adoption did not enjoy the fact gathering and evaluation process which in part justifies deference. In any event, the deference federal courts accord legislative predictive judgments "does not mean ... that they are insulated from meaningful judicial review altogether. On the contrary, we have stressed in First Amendment cases that the deference afforded to legislative findings does 'not foreclose our independent judgment of the facts bearing on an issue of constitutional law.' " Thus, courts are obligated to "assure that, in formulating its judgments, Congress has drawn reasonable inferences, based on substantial evidence."
California Prolife Council Political Action Comm. ,
The legislative deference doctrine fits better where the subject is technical and complicated. One example is the regulation of elections. See Nixon v. Shrink Missouri Gov't PAC ,
Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.
Anderson v. Celebrezze ,
The Attorney General argues that the state "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." This notion was first expressed in Young v. American Mini Theatres, Inc. ,
The notion of permitting a city to experiment with zoning decisions about the unwanted secondary effects of adult commercial enterprises, was repeated in City of Renton v. Playtime Theatres, Inc. ,
No case has held that intermediate scrutiny would permit a state to impinge even slightly on the Second Amendment right by employing a known failed experiment. Congress tried for a decade the nationwide experiment of prohibiting large capacity magazines. It failed. California has continued the failed experiment for another decade and now suggests that it may continue to do so ad infinitum without demonstrating success. That makes no sense.
iv. the important interests of the State
The state has important interests. Public safety. Preventing gun violence. Keeping our police safe. At this level of generality, these interests can justify any law and virtually any restriction. Imagine the crimes that could be solved without the Fourth Amendment. The state could search for evidence of a crime anywhere *1170on a whim. Without the First Amendment, the state could better police the internet. The state could protect its citizens from child pornography, sex trafficking, and radical terrorists. The state could limit internet use by its law-abiding citizens to, say, 10 hours a day or 10 websites a day. Perhaps it could put an end to Facebook cyberbullying.
The Attorney General articulates four important objectives to justify this new statutory bludgeon. They all swing at reducing "gun violence." The bludgeon swings to knock large capacity magazines out of the hands of criminals. If the bludgeon does not work, then the criminals still clinging to their large capacity magazines will be thrown in jail while the magazines are destroyed as a public nuisance. The problem is the bludgeon indiscriminately hammers all that is in its path. Here, it also hammers magazines out of the hands of long time law-abiding citizens. It hammers the 15-round magazine as well as the 100-round drum. And it throws the law-abiding, self-defending citizen who continues to possess a magazine able to hold more than 10 rounds into the same jail cell as the criminal. Gun violence to carry out crime is horrendous and should be condemned by all and punished harshly. Defensive gun violence may be the only way a law-abiding citizen can avoid becoming a victim. The right to keep and bear arms is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. McDonald v. City of Chicago, Ill. ,
v. an ungainly "fit"
"[T]he next question in our intermediate scrutiny analysis is whether the law is 'narrowly tailored to further that substantial government interest.' ... As the Supreme Court succinctly noted in a commercial speech case, narrow tailoring requires 'a fit between the legislature's ends and the means chosen to accomplish those ends.' " Minority Television Project, Inc. v. F.C.C. ,
The "fit" of § 32310 is, at best, ungainly and very loose. That is all that it takes to conclude that the statute is unconstitutional. The fit is like that of a father's long raincoat on a little girl for Halloween. The problem of mass shootings is very small. The state's "solution" is a triple extra-large and its untailored drape covers all the law-abiding and responsible of its 39 million citizens. Some of the exceptions make the "fit" even worse. For example, § 32310 makes an exception for retired peace officers, but not for CCW holders or honorably discharged members of the armed forces. There is no evidence that a retired peace officer has better firearms training.55 And in any event, for whatever training they receive, does it matter that they are trained to use a 10-round magazine, a 15-round magazine, a 30-round magazine, and if so, what is the difference? The State does not provide any insight. Another example is the exception for movie *1171props. Why in the interest of public safety does the movie industry need to use a genuine large capacity magazine for a prop? Is it too far-fetched to require the Hollywood creators of Mickey Mouse, Jaws, and Star Wars, to use a non-working magazine in place of a genuine large capacity magazine? Most importantly by far, however, is that the cloak of the law needs at least some arm holes to fit. It has none because it ignores the fact that magazines holding more than 10 rounds are commonly possessed by law-abiding, responsible citizens, and it affords no room for these citizens to defend their homes against attack.
A reasonable fit to protect citizens and law enforcement from gun violence and crime, in a state with numerous military bases and service men and service women, would surely permit the honorably discharged member of the U.S. Armed Forces who has lawfully maintained a magazine holding more than 10 rounds for more than twenty years to continue to keep and use his or her magazine. These citizens are perhaps the best among us. They have volunteered to serve and have served and sacrificed to protect our country. They have been specially trained to expertly use firearms in a conflict. They have proven their good citizenship by years of lawfully keeping firearms as civilians. What possibly better citizen candidates to protect the public against violent gun-toting criminals.
Similarly, a reasonable fit would surely make an exception for a Department of Justice-vetted, privately-trained, citizen to whom the local sheriff has granted a permit to carry a concealed weapon, and who owns a weapon with a magazine holding more than 10 rounds. California's statute does not except such proven, law-abiding, trustworthy, gun-owning individuals. Quite the opposite. Under the statute, all these individuals will be subject to criminal prosecution, should they not dispossess themselves of magazines holding more than 10 rounds.
Ten years of a federal ban on large-capacity magazines did not stop mass shootings nationally. Twenty years of a California ban on large capacity magazines have not stopped mass shootings in California. Section 32310 is a failed policy experiment that has not achieved its goal. But it has daily trenched on the federal Constitutional right of self-defense for millions of its citizens. On the full record presented by the Attorney General, and evidence upon which there is no genuine issue, whatever the fit might be, it is not a reasonable fit.
vi. irony
Perhaps the irony of § 32310 escapes notice. The reason for the adoption of the Second Amendment was to protect the citizens of the new nation from the power of an oppressive state. The anti-federalists were worried about the risk of oppression by a standing army. The colonies had witnessed the standing army of England marching through Lexington to Concord, Massachusetts, on a mission to seize the arms and gunpowder of the militia and the Minutemen-an attack that ignited the Revolutionary war. With Colonists still hurting from the wounds of war, the Second Amendment guaranteed the rights of new American citizens to protect themselves from oppressors foreign and domestic. So, now it is ironic that the State whittles away at the right of its citizens to defend themselves from the possible oppression of their State.
vii. turning the Constitution upside down
In the year 2000, California started its "experiment" in banning magazines holding more than 10-rounds. The statute included a grandfather clause permitting *1172lawful owners of larger magazines to keep them. See Senate Committee Rpt (Perata) SB 23 (Mar. 1999) , ("The purpose of this bill is to make all but the possession of 'large-capacity magazines' a crime punishable as an alternative misdemeanor/felony ('wobbler')"; "The bill would make it a crime to do anything with detachable large capacity magazines after January 1, 2000 - except possess and personally use them - punishable as a misdemeanor/felony."; "One could still possess those magazines after January 1, 2000.").56 Relying at least in part on the State's representation, law-abiding citizens did not object. Time passed. Now, these still law-abiding owners of larger magazines are told that the grandfather clause is a dangerous "loophole" that needs closing. Section 2.12 of Proposition 63 declared, "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." (Emphasis added.) Plaintiffs who have kept their own larger capacity magazines since 1999, and now face criminal sanctions for continuing to possess them, no doubt feel they have been misled or tricked by their lawmakers.
The Attorney General explains that the grandfathering provision made the prior version of § 32310 very difficult to enforce. Because large capacity magazines lack identifying marks, law enforcement officers are not able to tell the difference between grandfathered magazines and more recently smuggled, or manufactured, illegal magazines.57 Consequently, explains the Attorney General, "the possession loophole in Section 32310 undermined existing LCM restrictions." Def.'s Oppo. to Ps' MSJ, at 7. In an analogous First Amendment case, the Supreme Court called this approach turning the Constitution upside down. The Court explained:
We confronted a similar issue in Ashcroft v. Free Speech Coalition ,535 U.S. 234 [122 S.Ct. 1389 ,152 L.Ed.2d 403 ] (2002), in which the Government argued that virtual images of child pornography were difficult to distinguish from real images. The Government's solution was "to prohibit both kinds of images." We rejected the argument that "protected speech may be banned as a means to ban unprotected speech," concluding that it "turns the First Amendment upside down." As we explained: "The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse."
Federal Election Comm'n v. Wisconsin Right to Life, Inc. ,
viii. other arguments
(1). uniquely dangerous?
The State argues that magazines able to hold more than 10 rounds are uniquely dangerous because they enable a shooter to fire more rounds in a given period, resulting in more shots fired, more victims wounded, more wounds per victim, and more fatalities. Actually, many larger capacity magazines are not uniquely dangerous because they are not much larger. For example, a 12 or 15-round magazine is commonly owned and only slightly larger than the permitted 10-round magazines and enables a shooter to fire slightly more rounds, resulting only sometimes in slightly more rounds fired, or slightly more victims wounded, or slightly more wounds per victim, or slightly more fatalities. Conversely, a 12 or 15-round magazine may be the slight, but saving, difference needed for an overwhelmed homeowner trying to protect herself from a group of attacking invaders. The State may be correct that a 100-round magazine is uniquely dangerous.
The State relies on expert witness, Professor Louis Klarevas. Professor Klarevas says that banning large capacity magazines will reduce violence and force shooters to take a critical pause. See DX-3. However, in a piece by Professor Klarevas dated 2011, he offers that the Tucson shooting would have likely still happened with a ban on high capacity magazines. He wrote, "But, even if ... the federal government were to ban extended clips, the sad fact is that the Tucson shooting likely still would have happened .... Moreover, even if Loughner showed up with a six-bullet revolver as opposed to a 30-round Glock, he likely still would have shot people. What's more, a person set on inflicting mass casualties will get around any clip prohibitions by having additional clips on his person (as Loughner did anyway) or by carrying more than one fully loaded weapon."58
(2.) Kolbe v. Hogan
The State rests much of its argument on the decision in Kolbe v. Hogan ,
Kolbe concluded that large capacity magazines were beyond the protection of the Second Amendment. Id. at 137. The court reached that conclusion based on the *1174thought that such magazines are "most useful" in military service. Id. That large capacity magazines are useful in military service, there is no doubt. But the fact that they may be useful, or even "most useful," for military purposes does not nullify their usefulness for law-abiding responsible citizens. It is the fact that they are commonly-possessed by these citizens for lawful purposes that places them directly beneath the umbrella of the Second Amendment. Kolbe 's decision that large capacity magazines are outside the ambit of the Second Amendment is an outlier and unpersuasive. Beyond this, this Court is unpersuaded by Kolbe 's interpretation of Miller finding that weapons most useful for military service are not protected. The dissenting Kolbe judges persuasively pointed out that the approach turns Supreme Court precedent upside down. Id. at 156-57 (Traxler, Niemeyer, Shedd, and Agee, Js., dissenting) ("Under [that] analysis, a settler's musket, the only weapon he would likely own and bring to militia service, would be most useful in military service-undoubtedly a weapon of war-and therefore not protected by the Second Amendment. This analysis turns Heller on its head.").
(3.) Dr. Christopher S. Koper
The State relies on an expert, Dr. Christopher S. Koper.59 Dr. Koper, in turn, relies in part on an analysis performed by a graduate student. DX-4 at 131. The graduate student, in turn, relies on a collection of data by Mother Jones Magazine from 1982 through 2012. Id. The resulting master's thesis is unpublished and unavailable. Id. at n.12. Dr. Koper also relies on studies in localities outside of California from the 1990s for which he notes that the "findings may not generalize well to other locations and the current timeframe." Id. at n. 14. He describes some of this evidence as "tentative." Id. at 133. Dr. Koper concedes that he knows of no studies on the effects on gun violence of California's ban on assault weapons in 1989 and the ban on larger magazines in 2000. Id. at n. 15. He notes that "it is difficult to assess trends in LCM use because of limited information." Id. at 137. Specifically, Dr. Koper notes the paucity of solid data on the use of large capacity magazines. He explains, "[a]ssessing trends in LCM use is much more difficult because there was, and is, no national data source on crimes *1175with LCMs, and few local jurisdictions maintain this sort of information." Id. at 139. He notes, "there is little evidence on how state LCM bans affect the availability and use of LCMs over time." Id. at n. 29. He states, "[p]erhaps most importantly, to the best of my knowledge, there have not been any studies examining the effects of LCM laws that ban LCMs without grandfathering, as done by the new California statute. Hence, these studies have limited value in assessing the potential effectiveness of California's new law." Id. Finally, Dr. Koper acknowledges that while he does have an opinion, it is not based on a study of § 32310. He explains, "I have not undertaken any study or analysis of this law." Id. at 146.
(4.) Daniel W. Webster
The State also relies on the expert report of Daniel W. Webster, a professor of health policy and management. See DX-18 at 775. Professor Webster also has an opinion, but foundational data is vaporous. For example, Webster notes that, "[u]nfortunately, data to more definitively determine the connections between ammunition capacity and gun violence outcomes-the number of shots fired, the rate of fire, the number of victims, the number of wounds per victims, lethality of woundings- have not been collected in any population." Id. at 780-81. For his own analysis, Webster relies, in part, on Dr. Koper's re-analysis, of his graduate student's analysis, of Mother Jones Magazine's collection of shooting incidents. Id. at 780 ("Similarly, Professor Christopher Koper's re-analysis of his student's data from Mother Jones magazine's study of public mass murders with firearm...."). Webster also acknowledges the paucity of data-based analysis regarding mass shootings. He admits, "[a]lthough no formal, sophisticated analyses of the data on mass shootings in public places by lone shooters for the period 1982-2012 collected by Mother Jones magazine has been performed to my knowledge, a temporal pattern can be discerned that is consistent with a hypothesized protective effect of the federal assault weapon and LCM ban and a harmful effect of the expiration of that ban." Id. at 787-88. He also says, "[t]o date, there are no studies that have examined separately the effects of an assault weapons ban, on the one hand, and a LCM ban, on the other hand ...." Id. at 790. Webster opines that a magazine limit lower than 10 rounds could be justified. Id. at 791.
(5.) John J. Donohue
The State also relies on the expert report of John J. Donohue, a professor of law at Stanford Law School. See DX-2. According to his report in this case, he also prepared an expert report in the Fyock case. Id. at ¶ 6. Some of his observations should be discounted. Professor Donohue reports that national surveys "consistently find a persistent decline in household gun ownership," describing a 2013 report from the Pew Research Center. Id. at ¶ 14 and n.5. He describes this as reliable social science data. Id. at ¶ 15. The Court reviewed the Pew Research piece he cited. The first sentence notes the absence of definitive data, cautioning that, "[t]here is no definitive data source from the government or elsewhere" on gun ownership rates.60 It says that surveys provide conflicting results. In the paragraph directly following the portion quoted in Professor Donohue's expert report, the Pew Research *1176report describes a Gallup Organization survey. That survey concludes not that there has been a persistent decline, but rather that the gun ownership rate of 43% is "the same as it was 40 years earlier."61
Professor Donohue also opines that private individuals, unlike police officers, "only need to scare off criminals (or hold them off until the police arrive)." Id. at ¶ 21. This is obviously a generalization. The generalization would not have been true for Susan Gonzalez or the mother of twins whose assailants were not scared off despite each victim emptying her gun. See n.2 & 4, supra . Instead of "holding them off till the police arrived," the only assailants remaining at the scene when the police arrived in any of the three incidents described above was a fatally-wounded assailant. Professor Donohue again generalizes in his conclusion opining that a 10-round magazine "is sufficient" and higher capacity magazines are "not required" for defending one's home. Dx-2 at 9. Again, generalizations like these are no more than generalizations, and personal, not expert, opinions. Yet, for such an important context as the defense of self and loved ones, generalizations are dangerous. Relying on generalizations like these may lead to a thousand underreported tragedies for law-abiding citizen victims who were supposed to need only 2.2 rounds and no more than 10 rounds to scare off criminal assailants.
(6.) Carlisle Moody
The State provides the deposition testimony of Carlisle Moody, a professor, who opines that, "[f]irearms fitted with large capacity magazines can be used to cause death and injury in public shooting incidents, and can also result in more rounds fired and more homicides in general than similar firearms with smaller magazines," but concedes this conclusion is simply theoretical. DX-7 at 472-73 (Q. And what is the basis for that statement? How did you arrive at that conclusion? A. Just theoretically."). Furthermore, the same can be said of a 10-round magazine versus a 7-round magazine, or a 7-round magazine versus a 2-round Derringer.
(7.) Sandy Hook commission
The State relies on the report of a commission reviewing the Sandy Hook shooting. DX-28. However, it misquotes the commission's findings, saying "[d]ue to their lethality, LCMs 'pose a distinct threat to safety in private settings as well as places of assembly." Def. Opposition to Plaintiff's Motion for Summary Judgment at 11. What was reported is, "[t]he Commission found that certain types of ammunition and magazines that were readily available at the time it issued its Interim Report posed a distinct threat to safety in private settings as well as in places of assembly." Id. at 1097. The commission goes on to recommend a ban on armor-piercing and incendiary bullets (a good idea) as well as large-capacity magazines (without specifying size). Id.
(8.) large magazines not characteristically used for home?
The State asserts that large capacity magazines are not "weapons of the type characteristically used to protect the home," citing Hightower v. City of Boston ,
(9.) large magazines cause collateral damage?
The State argues that where a larger capacity magazine-equipped firearm is used in lawful self-defense, the magazines can cause collateral damage and injury when civilians fire more rounds than necessary, thereby endangering themselves and bystanders. Yet, one of the State's experts, Lucy P. Allen, opines that defenders average only 2.3 shots per defensive incident and that no one has shot more than 10 rounds in defense.62 This implies that on average, a magazine able to hold more than 10 rounds in the hands of a citizen firing in self-defense, will not cause any additional collateral damage and will not increase any danger to themselves or bystanders. State expert John J. Donahue goes farther and opines that private individuals only need to "brandish" a gun to scare off criminals. So, the notion that a stray round may penetrate a wall does not translate into any greater risk of bystander injury when a large capacity magazine is used by a defender since it will likely be used only for brandishing or for the average 2.3 shots. Even safer may be a large capacity magazine on an AR-15 type of rifle as it is likely to be more persuasive when brandished at criminal assailants than would a five-shot revolver. It is worth noting that in evaluating the strength of the government's fear of bystander injury, the State has not identified one incident where a bystander was hurt from a citizen's defensive gun use, much less a defensive use of a gun with a high capacity magazine. The worrisome scenario is improbable and hypothetical.
(10.) mass shooters prefer large magazines?
The State argues that mass shooters often use large capacity magazines precisely because they inflict maximum damage on as many people as possible. Perhaps this is true. There are no police investigative reports provided recounting a mass shooter's answer to the question: why select a large-capacity magazine. More importantly, many mass shooters do not select large capacity magazines, at all. The two incidents involving mass shootings at public high schools in 2018 are good examples. Instead of a pistol or rifle and large-capacity magazines, a shotgun and a revolver were the firearms selected by the mass shooter during the 2018 incident at Santa Fe High School in Galveston, Texas.63 Also rejecting large capacity magazines last year, the shooter in the Parkland, Florida, high school mass shooting carried 150 rounds in 10-round magazines.64
*1178Further undercutting the government's fear is the opinion of expert Gary Kleck, who says that mass shooters who do choose a high capacity magazine are mistaken in thinking it will enable them to cause more harm. "Right. They can do everything that that mass shooter might want to do if they had 10-round magazines rather than 30-round magazines. There's a difference between hypothetical potential and the reality of mass shootings ..." DX-8 at 492.
(11.) disproportionately used against police?
The State argues that large-capacity magazines are disproportionately used against police, citing an undated, unsigned, document created by an organization named the Violence Policy Center (DX-20 at 799-807). Def. Opposition to Plaintiff's Motion for Summary Judgment, at 18. The document says nothing about violence against police. Elsewhere, the State itself notes that between 2009 and 2013, large-capacity magazine firearms constituted less than half of the guns used in murders against police (41%). See DX-4 at 143. In the FBI's 2016 report on law enforcement officers killed and assaulted, the average number of rounds fired by a criminal at a police officer was 9.1. Since 2007, the average number of rounds fired has never exceeded 10, and for seven of the years the average was under 7.65 In other words, regardless of the magazine size used by a criminal shooting at a police officer, the average number of rounds fired is 10 or less, suggesting that criminalizing possession of a magazine holding more than 10 will have no effect (on average).
The statistical average of 9.1 rounds fired is consistent with a declaration of Phan Ngo, Director of the Sunnyvale Department of Public Safety. In his declaration, Ngo states that as a Deputy Chief at the San Jose Police Department he oversaw a 2016 shooting of a police officer. He stated that "the suspect fired 9 rounds at the officers, with an AR pistol type, semi-automatic weapon."66 Ngo goes on to state that "also recovered at the scene was a Mag Pro 30 clip (large capacity magazine) that still had 21 [ ] rounds in the clip."67 Fortunately, none of the officers were injured.
(12.) the critical "pause"
The State argues that smaller magazines create a "critical pause" in the shooting of a mass killer. "The prohibition of LCMs helps create a "critical pause" that has been proven to give victims an opportunity to hide, escape, or disable a shooter." Def. Oppo., at 19. This may be the case for attackers. On the other hand, from the perspective of a victim trying to defend her home and family, the time required to re-load a pistol after the tenth shot might be called a "lethal pause," as it typically takes a victim much longer to re-load (if they can do it at all) than a perpetrator *1179planning an attack. In other words, the re-loading "pause" the State seeks in hopes of stopping a mass shooter, also tends to create an even more dangerous time for every victim who must try to defend herself with a small-capacity magazine. The need to re-load and the lengthy pause that comes with banning all but small-capacity magazines is especially unforgiving for victims who are disabled, or who have arthritis, or who are trying to hold a phone in their off-hand while attempting to call for police help. The good that a re-loading pause might do in the extremely rare mass shooting incident is vastly outweighed by the harm visited on manifold law-abiding, citizen-victims who must also pause while under attack. This blanket ban without any tailoring to these types of needs goes to show § 32310's lack of reasonable fit.
(13.) Turner's requirement
Lastly, the State argues that it is not required to prove that § 32310 will eliminate or reduce gun violence or mass shootings, or that there is scientific consensus as to the optimal way to reduce the dangerous impact of large-capacity magazines, or that § 32310 will not be circumvented by criminals. All that must be shown, it contends, is that the State "has drawn reasonable inferences based on substantial evidence," citing Turner Broad. Sys., Inc. v. F.C.C. ,
Even Turner does not expect a judicial milquetoast naivete, but a muscular "meaningful review" and independent judgment of the facts. Remember, the Turner Court returned the case to the district court because of an inadequate record. E.g., id. at 667-68,
No similar unusually detailed congressional findings or predictive judgments after years of hearings are present in the case of California Penal Code § 32310. On the contrary, the 2016 criminalization and dispossession amendments added in § 32310 (c) and (d) were not the product of legislative action, at all. These were, instead, the product of a complicated state referendum question known as Proposition 63. Cf. Perry v. Schwarzenegger ,
(14.) Turner -style deference rejected in Heller
Turner -style deference for Second Amendment review was specifically argued for by Justice Breyer and rejected by the Court in Heller . See e.g., Heller v. D.C. ,
(15.) even Turner requires tailoring for a reasonable fit
Even under Turner 's intermediate scrutiny, a reasonable fit requires tailoring, and a broad prophylactic ban on acquisition or possession of all magazines holding more than 10 rounds for all ordinary, law-biding, responsible citizens is not tailored at all. Turner ,
(16.) "10" appears to be an arbitrary number
So, how did California arrive at the notion that any firearm magazine size greater than a 10-round magazine is unacceptable? It appears to be an arbitrary judgment. The Attorney General says it is not. Def's Response to Plaintiffs' Supp. Brief, at 9. He notes that other large-capacity magazine bans and the former federal ban settled on 10 rounds. The State does not, however, say why California (or any jurisdiction, for that matter) place the limit at 10. One author surmised from a comparison, that California lawmakers simply "borrowed the large-capacity magazine ban from the federal moratorium." Stricker, Brent W., Gun Control 2000: Reducing the Firepower ,
While the State's more recent legislation imposing a ban on magazines able to hold more than 10 rounds ( § 32310(b), 2016 Cal. Legis. Serv. Ch. 58 (S.B. 1446) (WEST) ) was superseded by Proposition 63's passage, the Attorney General does not identify any of the legislative discussions bearing on the 10-round limit. The 1994 federal ban with its 10-round limit lapsed in 2004. Federal law has no limit on permissible magazine size. In U.S. Sentencing Guidelines *1181for firearm offenses (§ 2K2.1(a) ) and the comments thereunder, a "large capacity magazine" is defined for purposes of sentencing as a magazine "that could accept more than 15 rounds of ammunition." See § 2K2.1 comment n.2 (2018); United States v. Cherry ,
The State argues only that it is not required to explain why it has selected 10 as the number. Def's Response to Plaintiffs' Supp. Brief, at 9-10. Perhaps not. But the 10-round limit appears to be arbitrary. A reasoned explanation or a considered judgment would tend to demonstrate why the "fit" of a total ban on magazines larger than 10-rounds is reasonable or how the ban is narrowly tailored. Perhaps it is an unintentional legacy from the 1930s when generally larger detachable magazines were rare, our military's popular WW I Colt .45 M1911 pistol held a magazine holding 7-8 rounds, and otherwise 5 or 6 shot revolvers ruled. Surly, Turner deference does not mean a federal court is relegated to rubber-stamping a broad-based arbitrary incursion on a constitutional right founded on speculative line-drawing and without any sign of tailoring for fit.
(17.) Fyock v. Sunnyvale
So, what about the Fyock decision. Fyock , like the Ninth Circuit decision in this case, are both appeals from preliminary injunction requests. Preliminary injunction appeals are reviewed narrowly. Compare Fyock ,
A preliminary injunction decision is a fact-bound decision. Fyock concerned a city ordinance covering only residents of Sunnyvale, California. This case concerns a state-wide statute. The Sunnyvale ordinance carved out exceptions for nine categories, including category eight ("Any person lawfully in possession of a firearm that the person obtained prior to January 1, 2000, if no magazine that holds fewer than 10 rounds of ammunition is compatible with the firearm and the person possesses the large-capacity magazine solely for use with that firearm."). Fyock v. City of Sunnyvale ,
The district court in Fyock , found that "magazines having a capacity to accept more than ten rounds are in common use, and are therefore not dangerous and unusual." Fyock ,
The divergence of opinion comes with the selection of the level of heightened scrutiny required. Like this Court's conclusion about § 32310, the district court in Fyock found that the Sunnyvale ordinance burdens conduct near the core of the Second Amendment right.
California Penal Code § 32310 unconstitutionally impinges on the Second Amendment rights of law-abiding responsible ordinary citizens who would like to acquire and possess for lawful purposes firearm magazines able to hold more than 10 rounds. Section 32310 is a complete ban that fails the simple Supreme Court test of Heller. Alternatively, § 32310 strikes at the core of the Second Amendment right of self-defense and severely burdens that right, triggering strict scrutiny. Because the statute imposes a broad prophylactic ban that is the opposite of a regulation using the least restrictive means to achieve a compelling interest, § 32310 fails constitutional muster under the test of strict scrutiny. Finally, even under the modest and forgiving standard of intermediate scrutiny, § 32310 is a poor fit to accomplish the State's important interests. It hardly fits at all. Therefore, this statute fails intermediate scrutiny. While, it may *1183be possible to fashion a restriction on uncommonly large magazines that is tailored to the manifold local contexts present across the entire state so as to achieve a reasonable fit, here, the bottom line is clear. The State has not carried its burden to justify the restrictions on firearm magazines protected by the Second Amendment based on the undisputed material facts in evidence. That is not to be lamented. It ought to provide re-assurance. To borrow a phrase, "[j]ust as it is the 'proudest boast of our free speech jurisprudence' that we protect speech that we hate, [and] ... the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive," it is the proudest boast of our Second Amendment jurisprudence that we protect a citizen's right to keep and bear arms that are dangerous and formidable. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n , --- U.S. ----,
III. The Takings Clause
Plaintiffs also contend that the State's confiscatory and retrospective ban on the possession of magazines over ten rounds without government compensation constitutes an unconstitutional taking. "For centuries, the primary meaning of "keep" has been "to retain possession of." There is only one straightforward interpretation of "keep" in the Second Amendment, and that is that "the people" have the right to retain possession of arms, subject to reasonable regulation and restrictions." Silveira v. Lockyer ,
California has deemed large-capacity magazines to be a nuisance. See
Plaintiffs remonstrate that the law's forced, uncompensated, physical dispossession of magazines holding more than 10 rounds as an exercise of its "police power" cannot be defended. Supreme Court precedent casts doubt on the State's contrary theory that an exercise of the police power can never constitute a physical taking. In Loretto , the Supreme Court held that a law requiring physical occupation of private property was both "within the State's police power" and an unconstitutional physical taking.
*1184Loretto v. Teleprompter Manhattan CATV Corp. ,
Recently, the Supreme Court summarized some of the fundamental principles of takings law in Murr v. Wisconsin , --- U.S. ----,
Takings jurisprudence is flexible. There are however, two guides set out by Murr for detecting when government regulation is so burdensome that it constitutes a taking. "First, with certain qualifications a regulation which denies all economically beneficial or productive use of land will require compensation under the Takings Clause. Second, when a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking still may be found based on a complex of factors, including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action." Murr ,
The dispossession requirement of § 32310(c) & (d) imposes a rare hybrid taking. Subsection (d)(3) is a type of physical appropriation of property in that it forces owners of large capacity magazines to "surrender" them to a law enforcement agency "for destruction." Thus, (d)(3) forces a per se taking requiring just compensation. But there are two other choices. Subsection (d)(2) forces the owner to sell his magazines to a firearms dealer. It is a fair guess that the fair market value of a large capacity magazine I the shadow of a statute that criminalizes commerce and possession in the State of California, will be near zero. Of course, the parties spend *1185little time debating the future fair market value for to-be-relinquished magazines. Subsection (d)(1) forces the owner to "remove" their large capacity magazines "from the state," without specifying a method or supplying a place. This choice obviously requires a place to which the magazines may be lawfully removed. In other words, (d)(1) relies on other states, in contrast to California, which permit importation and ownership of large capacity magazines. With the typical retail cost of a magazine running between $ 20 and $ 50, the associated costs of removal and storage and retrieval may render the process costlier than the fair market value (if there is any) of the magazine itself. Whatever stick of ownership is left in the magazine-owner's "bundle of sticks," it is the short stick.
Here, California will deprive Plaintiffs not just of the use of their property, but of possession , one of the most essential sticks in the bundle of property rights. Of course, a taking of one stick is not necessarily a taking of the whole bundle. Murr , 137 S.Ct. at 1952 (Roberts, C.J., dissenting) ("Where an owner possesses a full 'bundle' of property rights, the destruction of one strand of the bundle is not a taking, because the aggregate must be viewed in its entirety."). Nevertheless, whatever expectations people may have regarding property regulations, they "do not expect their property, real or personal, to be actually occupied or taken away." Horne , 135 S.Ct. at 2427. 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.
IV. CONCLUSION
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, 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 law-abiding 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 law-abiding 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.68
*1186Accordingly, 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.69 California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.
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.
IT IS HEREBY ORDERED that:
1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code section 32310.
2. Defendant Becerra shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. The government shall file a declaration establishing proof of such notice.
Related
Cite This Page — Counsel Stack
366 F. Supp. 3d 1131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-becerra-casd-2019.