2aguy
Diamond Member
- Jul 19, 2014
- 111,958
- 52,217
- 2,290
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.
---
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.
-------
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.
---
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.
------
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
----------
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).
----
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.
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.
---
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.
-------
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.
---
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.
------
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
----------
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).
----
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.
Last edited:
