What's Going On With California's Magazine Capacity Ban?

80 Percent Arms | Nov 29th 2022

#news

One of the most famous ongoing case of challenging magazine capacity ban pertains to the fight in California. Duncan v. Bonta, formerly Duncan v. Becerra, challenges California’s ban on standard capacity magazines. After NYSRPA v. Bruen concretely denied states from using the two step strict-intermediate scrutiny, Duncan v. Bonta was remanded back to Judge Roger Benitez. In other words the case’s progress is right where it was 3 years ago.

The state of California is given time (currently the present) to find a historical context that doesn’t exist to support standard capacity magazine ban. In the latest supplemental brief submitted by the state of California, the state insists that one of the most widespread features of modern firearms, a magazine capable of holding over ten rounds, is not in common use. From Judge Roger Benitez’s decision that led to freedom week, he establishes:

“In Caetano, the Court underscored these two points. One, the Second Amendment extends at the very least to common modern arms useful for self defense in the home. Two, Second Amendment protection includes both common arms and weapons that may also be useful in warfare.”

The Caetano case Judge Benitez refers to here is Caetano v. Massachusetts, a case in which a woman was arrested for defending herself against a violent ex-boyfriend using a stun gun. Although she did not ultimately use the stun gun on him during a night he was belligerent, she was able to use its presence to discourage serious bodily harm to her person.

At the time, Caetano was homeless. She had more reason than most people to be justified in fearing for her safety. Caetano was searched by law enforcement one day in a shoplifting incident. They had detained their suspect within the store already but the store manager suspected her and another individual in the parking lot were accomplices. She was found to be innocent and law enforcement believed her.

However, her possession of a stun gun in the state of Massachusetts violated state law “which bans entirely the possession of an electrical weapon.” The Massachusetts Supreme Judicial Court upheld this conviction on the basis that the founding fathers couldn’t have imagined Benjamin Franklin’s key and kite experiment would one day be applicable in the form of a Taser, therefore it was not protected by the Second Amendment.

This ruling was struck down as SCOTUS overruled that the Second Amendment covers common use weapons that weren’t conceived of during the Second Amendment’s ratification.

Above: Map of US Circuit Courts of Appeals

This brings us to several key components:

Magazines over 10 rounds are in common use and standard capacity is still standard capacity even if the media one day starts calling it high capacity.
Instruments that make up common use arms are protected by the Second Amendment, even those that didn’t exist during the founding.
California, Washington and other states with magazine capacity restrictions have no historical context to support their unconstitutional regulations as firearm magazines were not restricted during the relevant time periods.

What Can Be Expected To Happen For California's Magazine Ban Case?

As defendants of Duncan v. Bonta, there is nothing to do other than delay as long as possible to keep the magazine capacity ban in effect for a few more years.

Judge Benitez is expected to copy and paste his previous bulletproof decision or release a very similar ruling. Shortly afterwards, the state will file for an en banc appeal and the case will be reheard by a panel of judges randomly selected from a pool favoring the state.

This appellate court will most likely decide in favor of the state and uphold magazine capacity bans by lying that standard capacity magazines are not in common use.

If said court, however, upholds Judge Benitez’s ruling then the Duncan v. Bonta will only impact within the Ninth Circuit rather than the rest of the country.

In all likelihood, the case will eventually make its way to the Supreme Court and settle the arguments that should have been already addressed in Miller.

Can the State Argue that Standard Capacity Magazines Are Not In Common Use?

If there are no historical examples that the state can cite, the only other means of defending their monopoly on firearms is to assert that the regulated instrument is not in common use for militia warfare. Disserting that standard capacity magazines are not in common use by calling standard capacity instead high capacity is still an uphill battle for the state.

The US government itself sold over 200,000 M1 Carbines to the civilian market shortly after the Vietnam War with 15 round magazines and 30 round magazines as standard capacity. STANAGs and rifle magazines worldwide come standard in 30+ round capacity. Everyone living in a state with no restrictions in magazine capacity commonly uses... standard capacity.

SCOTUS Tells the Lower Courts To Stop Ignoring Heller

The ruling of NYSRPA v. Bruen affirms that the method of determining whether or not a firearms regulation is consistent with the protections of the Second Amendment calls for strict scrutiny — it must have a long-standing historical tradition. This means that every 2A case needs an example of a similar law dating back to the time period surrounding the ratification of the 2nd Amendment and 14th Amendment.

Here’s how we hope the legal battle of mag capacity will unfold

California’s Duncan v. Bonta ruling goes to the 9th Circuit and rules in favor of Duncan (unlikely but one can dream).
Thereby, affecting all states in the 9th Circuit, removing the unconstitutional magazine capacity restrictions.
The case may go to the Supreme Court since liberals can’t handle losing.
Under “strict scrutiny” of the law, SCOTUS would rule in favor of Duncan.
‘Standard capacity’ then becomes protected nationwide (for this to happen Duncan would likely need to be ruled against in the 9th Circuit first).
Caveat - in some sort of nightmare situation, SCOTUS could go the complete opposite direction as well, however, unlikely.

Gun Control Is Racist

Given the root of gun control as a class division tool, this has led to some rather controversial examples cited. In the case of Range v Garland which challenges firearm possession bans for non-violent felons, the state cited:

“The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms.18 See Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794, 16 Law & Hist. Rev. 567, 578–79 (1998). Amici contend that these restrictions affected individuals outside the political community and so cannot serve as analogues to contemporary restraints on citizens like Range.”

You heard that right. The state argues that if historically the state, up until the Civil Rights Act of 1964, could ban Black people, indentured servants and even indigenous groups of people from their Second Amendment right then it demonstrates that their historical context extends to non-violent status based demographics; in other words non-violent felons.

What Historical Context Can the State Cite for Standard Capacity Magazines?

There are no traditional regulations of white plantation owners outlawing enslaved black people and indigenous people from owning magazines. It's rather hard to regulate arms that are unavailable or frankly just haven't existed yet in widespread use at the time.

With no historical example to cite for restrictions on magazines and ergonomic features of modern firearms, what can legislators do to ensure that only their own security personnel, state law enforcement, and feds can legally reload without having to disassemble their entire gun?

HR1808?

The bill HR1808 has been on hiatus in the wake of midterm elections. The wrestle for control of the House of Representatives determines if Democrats will have the numbers to pass a federal restriction on magazine capacity. This ban will impact all 50 states should it pass and take effect. However, a nationwide magazine capacity restriction will no doubt force SCOTUS’ hand in hearing a case challenging magazine capacity ban within the next immediate docket.