By: Teresa Mull

California has had a ban on so-called “high-capacity” magazines (mags that can hold more than 10 rounds), since 2000. Last Friday, however, a district judge ruled the ban is “turning the Constitution upside down.”

A Brief Background
California’s original magazine ban included a grandfather clause, meaning people who possessed magazines made to hold more than 10 rounds could keep them.

“Now, these still law-abiding owners of larger magazines are told that the grandfather clause is a dangerous ‘loophole’ that needs closing," Judge Roger T. Benitez of the U.S. District Court for the Southern District of California wrote in his opinion. "Section 2.12 of Proposition 63 declared, ‘Today, California law prohibits the manufacture, importation and sale of military-style, large capacity ammunition magazines, but does not prohibit the general public from possessing them. We should close that loophole. No one except trained law enforcement should be able to possess these dangerous ammunition magazines.’

“Plaintiffs who have kept their own larger capacity magazines since 1999, and now face criminal sanctions for continuing to possess them, no doubt feel they have been misled or tricked by their lawmakers.”

Citing a Need for Self-Defense
“Individual liberty and freedom are not outmoded concepts,” Benitez declared in the opening of his opinion. In his introduction, the judge used vivid imagery of real-life home invasions to make the case for self-defense.

Benitez wrote:

In one year in California (2017), a population of 39 million people endured 56,609 robberies, 105,391 aggravated assaults, and 95,942 residential burglaries. There were also 423 homicides in victims’ residences. There were no mass shootings in 2017. Nationally, the first study to assess the prevalence of defensive gun use estimated that there are 2.2 to 2.5 million defensive gun uses by civilians each year. Of those, 340,000 to 400,000 defensive gun uses were situations where defenders believed that they had almost certainly saved a life by using the gun. Citizens often use a gun to defend against criminal attack…

“Fortunately, the Second Amendment protects a person’s right to keep and bear firearms,” the judge continued. “At the core of the Second Amendment is a citizen’s right to have in his and her home for self-defense common firearms. As evidenced by California’s own crime statistics, the need to protect one’s self and family from criminals in one’s home has not abated no matter how hard they try. Law enforcement cannot protect everyone.”

The NRA does not expect Benitez’ opinion to stand.

“Unfortunately, Friday’s opinion is not likely to be the last word on the case,” NRA-ILA reports. “The state will likely appeal to the Ninth Circuit, which has proven notably hostile to the Second Amendment in past decisions.”

The Judge’s Conclusion
Benitez’ full conclusion is reprinted below:

Magazines holding more than 10 rounds are “arms.” California Penal Code Section 32310, as amended by Proposition 63, burdens the core of the Second Amendment by criminalizing the acquisition and possession of these magazines that are commonly held by law-abiding citizens for defense of self, home, and state. The regulation is neither presumptively legal nor longstanding. The statute hits at the center of the Second Amendment and its burden is severe. When the simple test of Heller is applied, a test that persons of common intelligence can understand, the statute fails and is an unconstitutional abridgment. It criminalizes the otherwise lawful acquisition and possession of common magazines holding more than 10 rounds – magazines that lawabiding responsible citizens would choose for self-defense at home. It also fails the strict scrutiny test because the statute is not narrowly tailored – it is not tailored at all. Even under the more forgiving test of intermediate scrutiny, the statute fails because it is not a reasonable fit. It is not a reasonable fit because, among other things, it prohibits lawabiding concealed carry weapon permit holders and law-abiding U.S Armed Forces veterans from acquiring magazines and instead forces them to dispossess themselves of lawfully-owned gun magazines that hold more than 10 rounds or suffer criminal penalties. Finally, subsections (c) and (d) of § 32310 impose an unconstitutional taking without compensation upon Plaintiffs and all those who lawfully possess magazines able to hold more than 10 rounds.

Accordingly, based upon the law and the evidence, upon which there is no genuine issue, and for the reasons stated in this opinion, Plaintiffs’ motion for summary judgment is granted. California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.

This decision is a freedom calculus decided long ago by Colonists who cherished individual freedom more than the subservient security of a British ruler. The freedom they fought for was not free of cost then, and it is not free now.

  1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code section 32310.

  2. Defendant Becerra shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. The government shall file a declaration establishing proof of such notice.

Teresa Mull is editor of Gunpowder Magazine. Contact her at