Vivid and Explicit

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  • “As two masked and armed men broke in, Susan Gonzalez was shot in the chest.”
  • “When three armed intruders ... broke into the home of a single woman [Feng Zhu Chen] at 3:44 a.m., she dialed 911. No answer . . . [She] held a phone in one hand and took up her pistol in the other and began shooting. She fired numerous shots . . . After the shooting was over and two of the armed suspects got away and one lay dead, she did get through to the police. The home security camera video is dramatic.”
  • “Nothing in the Second Amendment makes lethality a factor to consider . . . The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.”
  • “In the late-15th Century, Leonardo Da Vinci designed a 33-shot weapon.”

These quotations are examples of how US District Judge Roger Benitez used unusually vivid language and illustrations in declaring that a high-capacity magazine ban in California is unconstitutional. The case, Virginia Duncan v. Xavier Becerra, began with a preliminary injunction in July 2017. It is an ongoing battle over banning high-capacity magazines. The latest news, as of this writing, is that his order of March 29, 2019 has been stayed pending appeal. So California can continue to prohibit buying and possessing magazines with a capacity greater than ten cartridges.

As far as I can tell, California first defined and regulated high-capacity magazines by the Assault Weapons Control Act of 1989. The act generally bans magazines with a capacity of more than ten cartridges. The law is absurdly complex, with exceptions for previously acquired weapons (grandfather provisions), for Olympic sport shooting, for active military moving to California, for film industry uses, for people traveling through California, etc. The same act imposes firearm-related rules relating to everything from the length of barrels to the use of shotshells in handguns.

If you did not get rid of your high-capacity magazines, you would become a criminal by simply keeping something that you had legally acquired and owned.

When this law went into effect you could no longer buy high-capacity magazines, but you could keep any that you already owned. The grandfather provisions allowed people who had lawfully acquired high-capacity magazines before the prohibition to keep them. In 2016 the state eliminated that exception. If you legally had high-capacity magazines, you would have to get rid of them. If you did not, you would become a criminal by simply keeping something that you had legally acquired and owned.

In May 2017, the plaintiffs sued in federal district court. They were people who owned high-capacity magazines and people wanted to own high-capacity magazines. The plaintiffs wanted to eliminate the ban entirely.

In June 2017, Judge Benitez issued a preliminary injunction blocking the change in the law that eliminated the grandfather provisions. You could keep your old high-capacity magazines and you could buy new ones.

In July 2018, a panel of the Ninth Circuit Court of Appeals upheld the preliminary injunction. You could continue to keep your old high-capacity magazines and buy new ones.

Heller was the first decision ever to recognize that the 2nd Amendment proclaims an individual civil liberty. The extent of that right will be fought over for a generation at least.

The defendants appealed to the Ninth Circuit Court of Appeals en banc. In April 2019, District Court Judge Benitez stayed part of his own order pending appeal. The effect of the stay is that current law travels back to a time in 2016 before the grandfather provisions were eliminated. You can now keep your high-capacity magazines, but you can’t get new ones.

Be prepared to see litigation like this for decades to come. It’s surprising to realize that the Supreme Court’s 2008 decision, Heller, was the first ever to recognize that the 2nd Amendment proclaims an individual civil liberty. The extent of that right will be fought over for a generation at least. In California alone, two important cases, this one about magazine capacity and Peruta, about concealed carry permits, have been going on for years. Some jurists say that the Constitution is a living document. That has become code for doctrines that change with the times rather than hewing to original intent. The Heller opinion relied on original intent and historical analysis. Duncan v. Becerra refers to Heller and gives us a vivid and explicit 2nd Amendment with no need for a “living document.”




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