Senior US District Judge Declares Gun Magazine Capacity Limits Unconstitutional

In 2017, Judge Roger Benitez, senior judge of the United States District Court for the Southern District of California, struck down California’s ban on standard capacity magazines which the state had arbitrarily ruled to be “high capacity.” That ruling was overturned by an en banc Ninth Circuit ruling. The case was then appealed to the Supreme Court which vacated that ruling based on its Bruen decision, and remanded it for reconsideration. September 22, 2023, Judge Benitez struck down California’s ban as clearly unconstitutional.

Here are excerpts from his well-reasoned and articulate 71-page ruling:

“The Second Amendment to the United States Constitution ‘guarantee[s] the individual right to possess and carry weapons in case of confrontation.’”

“The guarantee protects ‘the possession of weapons that are “in common use.”’”

“It’s our duty as judges to interpret the Constitution based on the text and original understanding of the relevant provision—not on public policy considerations, or worse, fear of public opprobrium.”

“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. Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.”

[ Read the SemperVerus article, USA State Constitutions Providing for Armed Self-Defense ]

“Many gun owners want to have ready more than 10 rounds in their guns. As a result, in the realm of firearms, mags that hold more than 10 rounds are possibly the most commonly owned thing in America. These larger magazines number over 100 million.”

“For handguns, the most popular sizes range up to 17 rounds; the most popular size for rifles, 30 rounds… There is no American tradition of limiting ammunition capacity and the 10-round limit has no historical pedigree and it is arbitrary and capricious.”

“California ignores Founding-era laws that present the best analogue to its present day magazine law. These are the manifold early militia laws requiring each citizen, not to limit the amount of ammunition he could keep, but to arm himself with enough ammunition: at least 20 rounds.”

[ Read the SemperVerus article, 12 Reasons to Responsibly Carry a Defensive Gun Every Day ]

“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. 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.”

“The right to have firearms for social security was important at the time the Constitution was adopted. 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.”

[ Read the SemperVerus article, Brief Answers for People Who Are Against the 2nd Amendment ]

“When Congress passed the Militia Act in 1792, the law required a citizen to be equipped to fire at least 20 to 24 shots. A 1786 New York law required ‘no less than Twenty-four Cartridges,’ and a 1785 Virginia law required a cartridge box and ‘four pounds of lead, including twenty blind cartridges.’ In 1776, Paul Revere’s Minutemen were required to have 30 bullets and gunpowder.”

“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. There were no upper limits…; there were floors and the floors were well above 10 rounds. California’s large capacity magazine ban is a diametrically opposed analogue.”

[ Read the SemperVerus article, Important Judicial Decisions Regarding Self-Defense Law ]

“Removable firearm magazines of all sizes are necessary components of semiautomatic firearms. Therefore, magazines come within the text of the constitutional declaration that the right to keep and bear arms shall not be infringed. Because millions of removable firearm magazines able to hold between 10 and 30 rounds are commonly owned by law-abiding citizens for lawful purposes, including self-defense, and because they are reasonably related to service in the militia, the magazines are presumptively within the protection of the Second Amendment. There is no American history or tradition of regulating firearms based on the number of rounds they can shoot, or of regulating the amount of ammunition that can be kept and carried. The best analogue that can be drawn from historical gun laws are the early militia equipment regulations that required all able-bodied citizens to equip themselves with a gun and a minimum amount of ammunition in excess of 10 rounds.”

“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. 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. The adoption of the Second Amendment was a freedom calculus decided long ago by our first citizens who cherished individual freedom with its risks more than the subservient security of a British ruler or the smothering safety of domestic lawmakers. The freedom they fought for was worth fighting for then, and that freedom is entitled to be preserved still.”

[ Read SemperVerus articles on the subject of the 2nd Amendment ]

For further reading on this ruling, see California’s 10-Round Magazine Limit Is Unconstitutional, a Federal Judge Rules (Again) on reason.com and California Magazine Ban Ruled Unconstitutional… Again on The MagLife Blog.

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