Legal Issues

Judge Deals California’s ‘High-Capacity’ Magazine Ban a Killer Blow

Rifle cartridges arranged to portray the U.S. flag in color

Big news from the Golden state! Let’s all yell “Hooray!” and pass the 30-round mags… Well, not quite yet. However, it is a step in the right direction for the defense of our Second Amendment rights and draconian attempts to limit magazine capacity.

Last Friday, United States District Court Judge Robert Benitez ruled that California’s ban on magazines capable of holding more than 10 rounds violated the Second Amendment. His reasoning was the most interesting part — and a must read. This is a judge who really looked at history in justifying his decision.

UpLULA magazine loader with two coyote brown mags
We all love our 30-round AR and AK mags, but the 10-round limit has the potential to hurt all people who carry concealed.

According to Judge Robert Benitez, California’s restriction on so-called ‘high-capacity’ magazines failed the test to determine constitutionality that was created by the Supreme Court last year.

“This case is about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes,” Judge Benitez wrote in Duncan v. Bonta. “Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.”

While the ruling was a solid victory for Second Amendment rights, in reality (for now) all this did was push the case back up to the higher courts. According to the scholarly law dogs, likely this case will have to ultimately be decided by the Supreme Court of the United States (SCOTUS).

Duncan v. Bonta is leading three additional cases which were also granted, vacated, and remanded by SCOTUS back to the lower courts. The Court’s reasoning in each was based on its ruling in New York State Rifle and Pistol Association v. Bruen. In essence, that means SCOTUS has given the lower courts another chance to either reverse their decisions or add additional points to be considered, should it be considered by SCOTUS again.

For Duncan v. Bonta, the next stop will be the Ninth Circuit Court of Appeals — a court with a history that leans more than just a little to the left. However, that is not to say that the court will bring a preconceived bias.

Puzzle of the U.S. constitution with pieces missing
Beyond concealed carry, Bruen could join the ranks of the Heller and McDonald cases in shaping future court decisions.

This will mark the second time the appeals court hears an appeal of a decision from Judge Benitez striking down the magazine limit. In 2021, an en banc panel reversed Judge Benitez’s decision and upheld the restriction as constitutional, so I would not be too hopeful that the court will rule in Second Amendment advocates’ favor this time.

Previously, Judge Susan P. Graber wrote for a 7–4 majority of the Ninth Circuit, “Nothing in the record suggests that the restriction imposes any more than a minimal burden on the Second Amendment right to keep and bear arms. Similarly, the record suggests at most a minimal burden, if any burden at all, on the right of self-defense in the home.”

There is a concept known as a two-step test that weighs the state’s interest in supporting the law against the infringement on the citizen’s rights. This is where the populous divides and takes sides. However, SCOTUS struck down this old test and instituted a new one in Bruen decision last year.

Instead of doing the balancing act between the state and citizens, the new test relies on determining whether any modern regulation is a close fit with those that existed when the Second Amendment was written. This is where Judge Benitez’s decision absolutely hit it out of the park, and Judge Graber’s opinion for the majority fails.

In his decision, Judge Benitez found that the government’s proposed analogues for its magazine ban didn’t overcome the legal hurdle before it.

Henry lever action rifle .30-30 20-inch barrel right profile
Historically, the states and courts did not rule lever guns to be unsafe just because they follow single-shot rifles, so why should there be a cap on magazine capacity?

“Government remains fixed on the notion that it alone can decide that anything larger than a 10-round magazine is not ‘suitable’ for a citizen to have. But there are no analogous cases in our history,” he wrote.

There are no cases where American government dictated that lever-action rifles were unsuitable because single-shot rifles were good enough or revolvers were unsuitable because derringers were good enough.

“These choices have always belonged to the People to decide for themselves how much firepower they need.”

However, Judge Benitez did not stop there. Benitez went on to point out that the laws at the time the Founding Era (when the Constitution was written) operated exactly opposite of California’s ammunition restriction.

“The right to have firearms for social security was important at the time the Constitution was adopted,” Benitez wrote. “There were many enemies of the young nation. An armed citizenry provided a much-needed deterrent effect. Early citizens remembered how the Minutemen of Lexington and Concord, Massachusetts, by assembling as a militia, fought back against the hostile British march to take away guns and gunpowder in April 1776.

These and other citizen militia laws demonstrate that, contrary to the idea of a firing-capacity upper limit on the number of rounds permitted, there was a legal obligation for the average citizen to have at least 20 rounds available for immediate use,” he continued. “There were no upper limits like § 32310; there were floors, and the floors were well above 10 rounds. California’s large capacity magazine ban is a diametrically opposed analogue.”

“We are delighted with this ruling,” Alan Gottlieb, founder of the Second Amendment Foundation, said in a statement. “The decision affects Washington Attorney General Bob Ferguson’s defense against a lawsuit challenging a similar ban in his state, which is also in the Ninth Circuit, as well as bans in other states.” Gottlieb went on to predict the case will have to ultimately be decided by the Supreme Court of the United States.

Second Amendment Foundation logo and address
Support those fighting for our rights!

Judge Benitez concluded his opinion by arguing the Second Amendment was “a freedom calculus decided long ago by our first citizens” that valued individual rights over the “subservient security” of the British monarchy or “smothering safety of domestic lawmakers.” He said that freedom was worth fighting for during the revolution and preserving today.

“One government solution to a few mad men with guns is a law that makes into criminals responsible, law-abiding people wanting larger magazines simply to protect themselves,” he wrote. “The history and tradition of the Second Amendment clearly supports state laws against the use or misuse of firearms with unlawful intent, but not the disarmament of the law-abiding citizen. That kind of a solution is an infringement on the Constitutional right of citizens to keep and bear arms.”

California Attorney General Rob Bonta (D.) has already filed a notice of appeal. In the next week or two, expect to hear from a Ninth Circuit. A panel will decide whether to grant an extended stay. Personally, I am not hopeful that the court will exercise due wisdom and rule in favor of the Second Amendment — based on its history. However, it does lay a groundwork and set a course to have SCOTUS hear the case. Given the current makeup of the High Court, thanks to the appointments of President Trump, this case could have national implication against gun control politicians’ attempts to disarm or reduce the citizen’s right to effective self-defense.

What’s your best guess? Will the Ninth Circuit maintain it previous stance or recognize the argument made by Judge Benitez and rule the magazine ban to be unconstitutional? Share your answer in the comment section.

The Mission of Cheaper Than Dirt!'s blog, The Shooter's Log, is to provide information—not opinions—to our customers and the shooting community. We want you, our readers, to be able to make informed decisions. The information provided here does not represent the views of Cheaper Than Dirt!

Comments (14)

  1. What is going with elites and progressive politicians that want to control, destroy and remove our non negotiable bill of rights (2A) . Ever since the ruling of Bruen versus NY it’s been a full assault on trying to reword or language to comply with the Supreme Court decision of last year. The question is are we having an administration that is trying to make this country a communist country and impose a NEW WORLD ORDER? To all my 2A law abiding citizens from the state that the minutemen had to defend themselves from English tyranny ( 1776) MA .

  2. The English colonies in North America lived under English law. That included the English “Bill of Rights” (1689), which included: {7] That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law;

    The revolutionaries had a right to ‘arms for their defense’.

    The US version: 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.

    Note well the final four words of each. The US Second Amendment is a reinforced reaffirmation of an existing “Right”. I don’t understand why US ‘historians’ fail to look back beyond 1776.

  3. I was not born in this country. My family came from India. We experienced at the hands of the government a planned genocide. Hindu thugs and criminals supported by the government killed christians and sikhs. The first step was to outlaw guns. Take away any firearm, even a over under shotgun. During elections citizenry is required to turn in their guns to the local
    Police station. Leaving thugs to influence the elections. This is the coming future of the United States.

  4. IN what ways would you be able to over through any entity with 10 bullets ,do you think that they will just have 10 bullets also. either a criminal ,Governmental or Invading entity will have as many bullets as they can get or carry. So where does that leave you? I am sure not on the side of being able to defend your self as the Second Amendment proposes you should be able to do. So I bought 20- 30 round mags and as much ammo as I could afford .

  5. Good afternoon my friends, I have been in the military since I was knee high to a grasshopper, and I have been blessed to have seen just about the entire collection of people in the world of firearm idiots that have held the same. I have never seen a rifle with with a 30 round magazine in Australia or a MK-19 with a full belt decide to go out and murder an entire neighborhood just for shite and giggles. Removing the magazines and the amount of bullets we can get won’t solve anything, making new laws won’t fix anything either except to alienate the government from the shooting community even more. Try to find a common ground and talk, they took the guns from Australia and only the criminals had them after that. Don’t let them do that here.

  6. M. Ward, in his otherwise astute comments above, referred to “assault style weapons” being in the hands of criminals. We must not allow ourselves to fall into the trap set by the press and the enemies of 2A. Calling a relatively low powered semi- auto rifle”assault style” only feeds the hysterical narrative of those who want to take them away from us.
    A criminal possibly could indeed have an assault weapon, but if so, he/she/it is in serious violation of well established law.
    We should not let our
    misuse of the terminology work against us.

  7. Poorly written article. All you did was was cut and paste the court decision with all of its legalese. It takes a lawyer to understand it.
    Get someone who knows how to digest court cases and give a lay person summation.

  8. Please consider california’s rural population. I live and raised my family in a rural area. On a great day, it takes 20 minutes or more for a deputy to arrive after 911. 20 minutes!!!
    Home invasion crimes are on a steep increase. Criminals doing this are armed and some even have assault style weapons. It is not fair or right or just to limit what a lawful citizen can have available to protect themselves and their family from this very real threat.
    Cities can pass anti-gun laws.
    Rural areas have many lawful good people that need a fair shake to protect their homes and families.
    Think- no help for 20 minutes! What would you want?

  9. Similar At Massachusetts 10 round large capacity when the state enacted 1998 gun control act and now liberals politicians are trying to pass a bill called HD 4420. Read on it . Also included the ban in AR-15 September 2015 so called “ copycat military rifles “ that was an executive decision by attorney general Maura Healey that pushed major firearms manufacturers Smith and Wesson out of the state.

  10. It’s not the gun or the magazine size that commits the crime. What part of that is so hard to understand. You can not protect society by imposing more restrictions on law abiding citizens.
    Bad people are going to commit heinous crimes regardless of laws.

  11. It’s not the gun or the magazine size that commits the crime. What part of that is so hard to understand. You can not protect society by imposing more restrictions on law abiding citizens.
    Bad people are going to commit heinous crimes regardless of laws.

  12. I’ve owned, mostly, handguns since I was a teen. Had mostly pistols, 1911s, Llama, Colts and S&W. Basically thought the .45 was the only “real” caliber to own but have gravitated to 9mm with new bullet designs and my aging (71 year) hands. IMHO the danger to the public is the combination of soft recoil rounds like the 5.56, 5.7 or 9mm, AND high capacity magazines. This allows untrained, weak and emotionally disturbed people to buy and use this combo to murder large numbers of people in a short time right after gun purchase.

  13. Great news,but unfortunately a federal judge in WA state just ruled the opposite in a very similar case. So SCOTUS really needs to weigh in.

  14. It will take years to finally resolve this issue, if that’s even a possibility. This is like a defective product in a factory that’s continually rejected. We may never see that product completed.

Your email address will not be published. Required fields are marked *

Your discussions, feedback and comments are welcome here as long as they are relevant and insightful. Please be respectful of others. We reserve the right to edit as appropriate, delete profane, harassing, abusive and spam comments or posts, and block repeat offenders. All comments are held for moderation and will appear after approval.

Discover more from The Shooter's Log

Subscribe now to keep reading and get access to the full archive.

Continue reading