USA – -(Ammoland.com)- Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world. I’m your host Adam Kraut and today we are talking about a groundbreaking injunction issued by a California judge stopping a law that would have made it illegal to have mags over 10 rounds. Guys stick around, this is huge.
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This past November, California voters approved a ballot initiative which, among other things, banned “large capacity” magazines. Since 2000, “large capacity” magazines and that means 10 rounds or more…have been banned in California. However, if an individual had possessed them prior to that law going into effect, they were allowed to keep them. The new law provided that the possession of such “large capacity” magazines would be criminalized. The initiative also added a section, which required owners of such magazines to dispose of them by removing them from the state, selling them to a licensed dealer, or surrendering them to a law enforcement agency. This ballot provision was passed with 63% of the vote and was set to take effect July 1, 2017.
Earlier in May, five residents of San Diego County and the California Pistol and Rifle Association filed suit in federal court, arguing that the new law violated the Second Amendment, as well as the Takings Clause and Due Process. Late last week, a federal judge agreed, at least initially, and granted a preliminary injunction which prevents the enforcement of the law. Seems like some people still understand the constitution in California.
The standards for granting a preliminary injunction like that are pretty simple. A plaintiff must establish four factors. These factors are 1) whether the plaintiff is likely to be successful on the merits, 2) whether they would suffer an irreparable harm if the injunction was not granted, meaning that the type of harm threatened cannot be fixed through monetary compensation or conditions cannot be put back the way they were, 3) the balance of equities tips in the plaintiff’s favor, meaning that after considering the factors such as public policy, convenience, harm to be suffered, etc., the balance tips in the plaintiff’s favor and 4) whether the injunction is in the public interest.
The Court found that magazines are arms for the purposes of the Second Amendment. It also found that the unlawful deprivation of those arms would be an irreparable harm, the preliminary injunction would preserve the status quo and it always is in the public interest to prevent the violation of an individual’s constitutional rights. As such a preliminary injunction was the appropriate remedy.
In the 66 page opinion, that I know you won’t read but it is worth your time, the judge waded through a variety of issues that were before the court. For the purposes of our discussion, we’ll keep it related to the Second Amendment claim.
The order almost immediately begins by acknowledging the complexity of California’s gun laws finding “the State has enacted, over the span of two decades, an incrementally more burdensome web of restrictions on the rights of law-abiding responsible gun owners to buy, borrow, acquire, modify, use, or possess ammunition magazines able to hold more than 10 rounds.” The judge noted that “the language used, the internally- referenced provisions, the interplay among them, and the plethora of other gun regulations, have made the State’s magazine laws difficult to understand for all but the most learned experts.” What you’re witnessing is historic. A California Judge saying that their laws don’t make sense. One might say it is even perhaps…astonishing.
The order goes on to state that Heller made it absolutely clear that under the Second Amendment, certain policy choices are off the table. Finding that the right to bear arms includes the right to keep and carry magazines holding more than 10 rounds for those arms, the judge argues that California’s law likely places an unconstitutional burden on the plaintiffs.
The Court applied two different tests to arrive at the same outcome, noting that one version is an overly complex analysis that “non-lawyer types”, as Jon puts it, cannot be expected to understand and appears at odds with Heller’s simple test that the court is bound to follow.
The Court looked at Justice Thomas and Scalia’s analysis of the Heller test in a dissension from a denial of certiorari. The two justices noted that Heller “asks whether the law bans types of firearms commonly used for a lawful purpose — regardless of whether alternatives exist. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns.” They went on to state that “Roughly five million Americans own AR-style semi-automatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” The Court found that under the Heller test, the new law was suspect because it broadly prohibits rifle and pistol magazines that are used for lawful purposes.
Under the more complicated analysis employed, the Court determined it had to use an intermediate scrutiny review. Remember intermediate scrutiny requires that there be an important government interest and that the law is a reasonable fit in advancing that interest. The order also noted that “on intermediate scrutiny review, the state cannot ‘get away with shoddy data or reasoning.”
The Court looked to the data that the Government provided. In looking at the intermediate scrutiny requirements, the Court found that there was an important governmental interest in reducing gun violence but determined that confiscation was not a reasonable fit to achieve that goal. The evidence provided by the Government included: data regarding mass shootings (including an article from Mother Jones Magazine and a report from Mayors Against Illegal Guns) as well as “expert witnesses”.
Notably, the Court stated that “Mother Jones magazine has rarely been mentioned by any court as reliable evidence. It is fair to say that the magazine survey lacks some of the earmarks of a scientifically designed and unbiased collection of data.” The report from Mayors Against Illegal Guns did not escape judicial scrutiny either. The Court found that it tends to prove the opposite of a justification for the new law, or in other words, it tends to prove there is no need to criminalize law-abiding responsible citizens possession of magazines holding more than 10 rounds.
The judge thoroughly analyzed the 92 mass shootings in the report (with mass shooting following the FBI definition of an incident where 4 or more people were killed with a gun). The Court noted that only 10 of the 92 cases were from California. Out of those 10, only 2 used illegal magazines. There was one instance where it was believed the shooter brought illegal magazines in from out of state and in the other instance, the individual was already prohibited from possessing firearms and ammunition. In short, the judge concluded that the law would have had, at best, a marginal effect in deterring any of these crimes. The judge went on to state that based on this evidence, the proposed law not only failed to be a reasonable fit but was not a fit at all. Even expanding the scope of the review to all 92 cases, only 6 reported that magazines with more than 10 rounds were used and three instances involved illegal acquisitions, which a law would not have stopped anyway.
The Government had also submitted the affidavits or declarations of four different experts. Daniel Webster, a professor of health policy and management, stated that he believed a 10 round magazine limit would be beneficial to public safety but conceded that there was a lack of evidence available from studies to support that position. Lucy Allen, an economist, utilized the data from Mother Jones and a study from the Citizens Crime Commission of New York City, to create her report. Like Webster, Allen admitted that the data available was not robust and in this instance, most of the time did not indicate whether a large capacity magazine was even used.
Another “expert witness”, John Donahue, a professor who has a graduate degree from Yale and law degree from Harvard, based his findings on a few news articles and little more. Seems like those Ivy League schools are pumping out real gems. He stated that it was his belief the resolution of mass shootings was lower capacity magazines which would force the shooter to have to stop to reload. The Court noted that ironically, on the day after this declaration was signed and the hearing on this matter was held, the shooting incident in Virginia occurred at the congressional baseball practice. The judge went on to describe the rifle the shooter used, which was an SKS, and stated that no one tried to stop or tackle the shooter while he reloaded. The judge also pointed to the incident at Fort Hood as further support for the absurdity of such a proposition. Perhaps most insulting in Mr. Donahue’s declaration was the belittling of the possibility that elderly or disabled individuals need a firearm that would hold enough ammunition that reloading was not necessary.
The last declaration came from Ken James, a retired police chief, who stated that high capacity magazines serve only to enhance the killing and injury potential of a firearm. However, he failed to explain why forcing law abiding citizens to dispose of magazines holding more than 10 rounds was a solution. He simply suggested that they had not been needed in the past and would not be needed now, a proposition that the Court rejected.
The Court then analyzed the four facts required to grant a preliminary injunction, finding that the law was not a reasonable fit, would cause an irreparable injury to the plaintiffs, the balance of hardships tipped in favor of the plaintiffs, and the violation of the plaintiff’s constitutional rights woluld be against public policy.
Until the case is decided on the merits, California gun owners are safe from having to dispose of their magazines that hold more than 10 rounds. This is one that we’ll be following.
So that is the Court’s rationale in granting the injunction. If you guys actually learned something here and are pumped about this, hit that like button. Know someone who would enjoy this video? Make sure you share it with them. And if you aren’t subscribed already, you better make that happen and be sure to ring that bell so you don’t miss an episode. Also, check out my website adamkraut.com.
And as always thanks for watching!
Links for this episode:
Order Granting Preliminary Injunction – http://michellawyers.com/wp-content/uploads/2017/05/Duncan-v.-Becerra_Order-Granting-Preliminary-Injunction.pdf
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