The judge who stopped the California gun magazine confiscation explains why it is stupid...

[2aguy]

This is the ruling that explains why the judge in San Diego stopped California, temporarily, from executing their gun magazine confiscation......

First...an important point from the judge....

Of the 92 mass shooting incidents over the five years from 2009 to 2013, although millions of magazines holding more than 10 rounds are owned by citizens nationwide, according to the Mayors’ survey, only six incidents involved a magazine 36 17cv1017-BEN Case 3:17-cv-01017-BEN-JLB Document 28 Filed 06/29/17 PageID.4152 Page 36 of 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 holding more than 10 rounds.

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In other words, § 32310 appears to be a poor fit as a means for the State to achieve its four important objectives.


http://michellawyers.com/wp-content...rra_Order-Granting-Preliminary-Injunction.pdf

C. Plaintiffs

Plaintiffs are a group of California residents who either already own magazines holding more than 10 rounds or who want to own magazines holding more than 10 rounds for their defense of self and state. Plaintiff Richard Lewis is a law-abiding citizen and an honorably discharged 22-year United States Marine Corps veteran.

For more than 20 years, Lewis has lawfully possessed and continues to possess large capacity magazines. Plaintiff Patrick Lovette is a law-abiding citizen and an honorably retired 22- year United States Navy veteran.

For more than 20 years, Lewis has lawfully possessed and continues to possess large capacity magazines. Plaintiffs allege they lawfully possess large capacity magazines for self-defense and other lawful purposes. Plaintiff California Rifle and Pistol Association, Inc, is a membership organization almost as old as the State of California. The organization represents tens of thousands of its California members.

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E. Two Questions

Ultimately, this case asks two questions.

“Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation?

Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?


Because a final decision on the merits is likely to answer both questions “yes,” but a final decision will take too long to offer relief, and because the statute will soon visit irrevocable harm on Plaintiffs and all those similarly situated, a state-wide preliminary injunction is necessary and justified to maintain the status quo.

Because Plaintiffs have demonstrated on this preliminary record a likelihood of success on the merits, a likelihood of irreparable harm, a balance of equities that tips in their favor, and that an injunction would be in the public interest, a preliminary injunction will issue.

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A. The Second Amendment

– Certain Policy Choices Are off the Table In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court made absolutely clear that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

Heller, 554 U.S. at 636. The State of California’s desire to criminalize simple possession of a firearm magazine able to hold more than 10 rounds is precisely the type of policy choice that the Constitution takes off the table.

Because the right to bear arms includes the right to keep and carry ammunition and magazines holding more than 10 rounds for those arms, for both self-defense and to be ready to serve in a militia, the State’s criminalization of possession of “large capacity magazines” likely places an unconstitutional burden on the citizen plaintiffs. 1.


Likelihood of Success on the Merits 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.

Second Amendment rights are not watered-down, 4 second-class rights. “t is clear that the Framers and ratifiers of the Fourteent Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, Ill., 561 U.S. 742, 778 (2010).

The right to bear arms for a legal purpose is an inherent right pre-dating and transcending the Second Amendment. “The right there specified is that of ‘bearing arms for a lawful purpose.’

This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
United States v. Cruikshank, 92 U.S. 542, 553 (1875), overruled on other grounds, United States v. Miller, 307 U.S. 174 (1939).

Some may fear that the right to keep and bear arms means citizens hold a right to “possess a deadly implement and thus has implications for public safety,” and that “there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries.” McDonald, 561 U.S. at 782-83 (argument of the City of Chicago).

True enough. But, public safety interests may not eviscerate the Second Amendment. “The right to keep and bear arms, however, is not 6 the only constitutional right that has controversial public safety implications.

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The Supreme Court also recognizes that the Second Amendment guarantee includes firearms that have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Miller, 307 U.S. at 178.

Miller implies that possession by a law-abiding citizen of a weapon that could be part of the ordinary military equipment for a militia member, or that would contribute to the common defense, is protected by the Second Amendment.

Concluding that magazines holding 7 more than 10 rounds might be found among today’s ordinary military equipment or that such magazines would contribute to the common defense, requires only a modest finding

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a. Self-defense and militia use

Heller and Miller are not inconsistent.

Heller acknowledges that protection for weapons useful to a militia are also useful for defending the home.


“It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self defense weapon . . . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Heller, 554 U.S. at 629.


As McDonald puts it, “n Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias.

On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was ‘the central component of the right itself.’” McDonald, 561 U.S. at 742 (emphasis in original).


In Caetano v. Massachusetts, the Court underscored these two related points from Heller and McDonald.

First, the Second Amendment extends to common modern firearms useful for self-defense in the home.

Second, there is no merit to “the proposition ‘that only those weapons useful in warfare are protected.’” See Caetano, 136 S. Ct. 1027, 1028 (2016) (per curiam) (quoting Heller, 554 U.S. at 582, 624-25) (remanding for further consideration of whether Second Amendment protects stun guns) (emphasis added); contra Kolbe v. Hogan, 849 F.3d 114, 131 (4th Cir. 2017) (weapons useful in warfare are not protected by the Second Amendment).

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b. Ammunition magazines are arms


The Second Amendment protects firearms and the ammunition and magazines that enable arms to fire. The Second Amendment does not explicitly protect ammunition.

“Nevertheless, without bullets, the right to bear arms would be meaningless. A regulation eliminating a person’s ability to obtain or use ammunition could thereby make it impossible to use firearms for their core purpose.” Jackson, 746 F.3d at 967.


“Thus the right to possess firearms for protection implies a corresponding right to obtain the bullets necessary to use them.” Id. (citing Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (holding that the right to possess firearms implied a corresponding right to have access to firing ranges in order to train to be proficient with such firearms).


Indeed, Heller did not differentiate between regulations governing ammunition and regulations governing the firearms themselves. Id. The same is true for magazines. “Constitutional rights thus implicitly protect those closely related acts necessary to their exercise . . . The right to keep and bear arms, for example ‘implies a corresponding right to obtain the bullets necessary to use them.’” Luis v. United States, 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) (quoting Jackson, 746 F.3d at 967).


Without protection for the closely related right to keep and bear ammunition magazines for use with the arms designed to use such magazines, “the Second Amendment would be toothless.” Id.

Most, if not all, pistols and many rifles are designed to function with detachable magazines. They are necessary and integral to the designed operation of these arms. Of course, when a magazine is detached the magazine is not a firearm. It is not dangerous.

 

[2aguy]

Breaking it up a little...

b. Constitutionally suspect under the simple test

Under the simple Heller test, § 32310 (c) & (d) are highly suspect.

They are suspect because they broadly prohibit common pistol and rifle magazines used for lawful purposes. “[T]hat is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” Friedman, 136 S. Ct. at 449.

Magazines holding more than 10 rounds are useful for self-defense by law-abiding citizens.

And they are common.

Lawful in at least 43 states and under federal law, these magazines number in the millions.Cf. Hollis v. Lynch, 827 F.3d 436, 449 (5th Cir. 2016) (defining the term “common” by applying the Supreme Court test in Caetano of 200,000 stun guns owned and legal in 45 states being “common”); see also NYSR&PA v. Cuomo, 804 F.3d 242, 255-57 (2nd Cir. 2015) (noting large-capacity magazines are “in common use” as the term is used in Heller based on even the most conservative estimates).

To the extent they may be now uncommon within California, it would only be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines.

To say the 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, 784 F3d 406, 409 (7th Cir. 2015) (“Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so the it isn’t commonly used. A law’s existence can’t be the source of its own constitutional validity.”).

 

[percysunshine]

"Because a final decision on the merits is likely to answer both questions “yes,” but a final decision will take too long to offer relief, ..."

Standard judge stuff. The appeal will work to a certain conclusion, but it will take a long time.

An interesting contrast to the judge's stays in the recent imigration case decided 7-2 by the Supreme Court.

 

[2aguy]

And get this....the Attorney General...just like anti-gunners everywhere...lied in his evidence he submitted to the judge.....and the judge calls him on it here...on pages 30-31 of the injunction ruling...

http://michellawyers.com/wp-content...rra_Order-Granting-Preliminary-Injunction.pdf

The Attorney General asserts that the “militarystyle features of LCMs make them particularly attractive to mass shooters and other criminals and pose heightened risks to innocent civilians and law enforcement.” Oppo. at 11.

He asserts that “LCMs are used disproportionately in mass killings and in murders of police.” Oppo. at 11.

The Mayors Against Illegal Guns survey (hereinafter “Mayors’ survey”) belies these assertions. Oppo.

Gordon Declaration, Exh. 59.

(a) of 92 cases, only 10 are from California What does the Mayors’ survey teach about the fit of California’s statute?

First, it is noted that 82 of the 92 cases are from jurisdictions beyond California.

Only ten of the 92 mass shootings in the survey took place in California.

These ten incidents prove very little about whether § 32310 (c) & (d) provide a reasonable fit – or means – of achieving the State’s four public safety goals.

(b) the 10 California cases examined In three of the ten California incidents, the firearm is unknown and the magazine type, if any, is unknown. (#52 Willowbrook (2/11/11), #65 Los Angeles (4/3/10), #92 Wilmington (1/27/09)).

In a fourth incident, a revolver was used. (#18 Tule River 11 Reservation (12/8/12)).

Revolvers, of course, do not use magazines at all.

In a fifth incident, a pistol was used but no mention is made of a magazine holding any more than 10 rounds. (#20 Northridge (12/2/12)).

In a sixth incident, a pistol was used with four (legal) 10-round magazines. (#31 Oakland (4/2/12)).

This, of course, tends to prove the statute would not have the desired effect.

In two more incidents, the pistols used were purchased legally in California. (#40 Seal Beach (10/12/11); #84 Santa Clara (3/29/09)).

These would have been sold with California-legal 10-round magazines.

No mention is made of larger magazines being used. If that was the case, then again the data tends to prove that the statute would have no good effect.

(c) no effect in eight cases In other words, only ten of 92 mass shootings occurred in California and § 32310 (c) & (d) would have had no effect on eight of those ten.


The criminalization of possession of magazines holding more than 10 rounds would have had no effect on mass killings by revolver.

It would have had no effect on pistols bought legally in California because they are sold with 10-round magazines.

It would have had no effect on shootings where magazines holding any more than 10 rounds were not used.

(d) a closer look at the two magazine cases Of the 92 mass shootings recorded in the Mayors’ survey, only two occurred in California and involved the use of illegal magazines. (#7 Santa Monica (6/7/13) and #85 Oakland (3/21/09)).

In the Santa Monica incident, the shooter brought multiple firearms, as happens to be the case in almost all “mass shootings.” He brought 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 additional protection from gun violence for citizens or police officers or prevented the crime.

In the remaining incident, a shooter in Oakland, California also brought multiple guns. He used an SKS assault-type rifle with a magazine holding more than 10 rounds and a pistol. He killed four policemen. He killed the first two policemen with the pistol when officers stopped his car in a traffic stop. He then fled on foot to an apartment. Two more officers were killed with the assault rifle and an illegal large capacity magazine and a third was wounded.

The murderer had a lengthy criminal history, according to the Mayors’ survey. At the time of the mass shooting, the killer was on parole for assault with a deadly weapon. As such, he was already prohibited from possessing any kind of gun.

As in the Santa Monica example, criminalizing possession of magazines holding any more than 10 rounds likely would not have provided additional protection from gun violence for citizens and police officers or prevented crime in the Oakland example.

(e) conclusions from California cases 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 other California law-abiding responsible citizen-owners of gun magazines holding more than 10 rounds.