Court Stops 10+ Magazine Ban, For Now

Under a California magazine ban that has been stayed by a federal court, 10-round magazines like this Magpul PMag would have been the largest available in the state.

A federal judge has temporarily blocked a voter-approved California law that would have forced gun owners to give up standard-capacity ammunition magazines holding 10 rounds or more.

To get into compliance with the law, California gun owners would have been allowed move them out of state, sell them to a licensed dealer, destroy them, or hand them over to law enforcement.

The judge granted the request of attorneys from the California Rifle & Pistol Association to temporarily block the law.

Edwin Walker, Independent Program Attorney for Texas & U.S. Law Shield and a partner in the Walker & Taylor law firm in Houston, said U.S. District Judge Roger Benitez issued a preliminary injuction last week that found the law was likely unconstitutional because it prevented people from using firearms that employed “whatever common magazine size he or she judges best suits the situation.”

Walker said the decision reads, while quoting the U.S. Supreme Court’s Heller opinion, “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.”

The Judge recognized that “The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law.”

In acknowledging that Constitutional rights are not to protect the rights of the majority, but instead are to protect the rights of the minority, Judge Benitez stated, “Plaintiffs’ entitlements to enjoy Second Amendment rights and just compensation are not eliminated simply because they possess ‘unpopular’ magazines holding more than 10 rounds.”

He further wrote, “If this injunction does not issue, hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property,” Benitez wrote. “That is a choice they should not have to make.”

C.D. Michel, an attorney for state gun owners, welcomed the decision, which allows a lawsuit to be decided on its merits before the law takes effect. The plaintiffs include gun owners from the San Diego area and the California Rifle and Pistol Assn.

“My clients are pleased the Court affirmed that the Second Amendment is not a second class right, and that law abiding gun owners have a right to choose to have these magazines to help them defend themselves and their families,” Michel said in a statement.

In short, Walker said, the law would have prohibited people from possessing magazines containing more than 10 cartridges. Many semi-automatic handguns have capacities of to 15 or 17 rounds, and many rifle magazines carry up to 30 rounds in commonly delivered sizes, Walker said.  However, it is important to remember that current California law prohibits anyone from bringing into the state any magazine that holds greater than 10 rounds.  That law is not part of this current constitutional challenge.

Under the magazine-ban law, gun owners who still possessed banned magazines would have faced a fine not to exceed $100 per magazine, or could have been found guilty of a misdemeanor that carried punishments of a fine not to exceed $100 and up to a year in jail.

In the decision, Benitez wrote, “…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.”

The ban is part of Proposition 63, approved with 63 percent of votes in November, that required background checks for people buying ammunition and instituted other firearms restrictions.

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