In 2016, California voters approved Proposition 63, which, starting July 1, would forbid the possession of magazines over 10 rounds. Any Californian in legal possession of such a magazine has four options: remove the magazine from the state, sell it to a licensed firearms dealer, surrender it to a law enforcement agency for destruction or spend up to one year in county jail.

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In Duncan v. Becerra, federal district Judge Roger Benitez (Southern Dist. of California) issued a preliminary injunction against enforcement of the confiscation law. A preliminary injunction normally stays in effect until the trial court issues a final ruling on the merits, after a trial or a motion for summary judgement. However, preliminary injunctions can be appealed, and it would not be surprising for the California attorney general to attempt an appeal.

The plaintiffs are represented by Michel & Associates, who were my co-counsel in a Heller amicus brief, on behalf of a large group of law enforcement organizations, including half of California’s Sheriffs.

Preliminary injunction standards: When considering a motion for a preliminary injunction, courts evaluate four factors: (1) whether plaintiffs are likely to succeed on the merits; (2) whether they would suffer irreparable harm if the injunction were not granted; (3) the balance of equities; and (4) whether the injunction is in the public interest.

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To decide whether the plaintiffs are likely to succeed on the merits, the court first had to determine whether the banned magazines are protected by the Second Amendment. For reasons described below, the court so found. With that finding, all the other factors easily fell into place. The unlawful deprivation of Second Amendment rights, even temporarily, is an irreparable injury, said Benitez, extrapolating from precedents making this point in a First Amendment context. The preliminary injunction merely preserved the status quo (no new sales, no confiscation of existing magazines) that has existed since 2000. And “it is always in the public interest to prevent the violation of a person’s constitutional rights.”

Second Amendment standards: The court addressed two questions: (1) “Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation?” and (2) “Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?”

The court used two different methodologies for answering these questions. The first methodology was based on the Supreme Court’s 2008 decision District of Columbia v. Heller. Besides using what the court called Heller‘s “simple test,” the court also applied the much more complicated multi-step approach that has been used by many lower courts post-Heller. (For in-depth analysis of the complicated approach, as developed by most of the Federal Circuit Courts of Appeal, see Kopel & Greenlee, “The Federal Circuits’ Second Amendment Doctrines,” 61 St. Louis University Law Journal 193 (2017).)

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Analyzing a D.C. law that banned handguns but allowed long guns, the Heller majority’s “simple test” paid zero attention to the pro/con social science evidence about how often handguns are used for defense or for crime, whether handgun bans are criminologically beneficial or harmful, and so on. The Heller majority expressly rejected the approach in Justice Stephen G. Breyer’s dissenting opinion, which carefully set forth the pro/con statistics and studies, and then concluded that since there was good evidence on both sides, the court should defer to the D.C. Council’s legislative judgement. As Benitez explained, Heller simply asked whether the banned arms (handguns) are commonly possessed by law-abiding citizens for lawful purposes, as they obviously are.

As for the banned magazines, there are about 100 million of them nationwide. Incidentally, this was approximately the number of handguns in the United States when Heller was decided in 2008. Obviously the magazines are commonly owned by law-abiding citizens for self-defense. Indeed, some of the nation’s most popular handguns — which Heller deemed the “quintessential self defense weapon” — come with standard magazines larger than 10 rounds. Thus, the court found that the magazines are protected by the Second Amendment. Because magazines are integral to the function of a firearm, they are covered by the Second Amendment.

The Heller decision provided clear guidance on how to analyze arms prohibitions: arms that are “in common use” and “typically possessed by law-abiding citizens for lawful purposes” may not be banned. Conversely, arms that are “dangerous and unusual” are not Second Amendment arms. So the confiscation law violated Heller.

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Benitez then applied the more complicated test that is used by many lower courts. Properly, this test is appropriate for non-prohibitory gun controls, such as whether a particular licensing system complies with the Second Amendment. It should not be used for arms prohibitions, for which Heller provides the methodology. Some lower courts have followed Heller when assessing arms bans, but others have used the complicated test, what Benitez called the “tripartite binary test with a sliding scale and a reasonable fit.”

Following U.S. Court of Appeals for the 9th Circuit precedents, the test ends up at “intermediate scrutiny.” Under intermediate scrutiny, the government bears the burden of proof: first, that there is an important government interest involved; second, that the law is “a reasonable fit” in advancing the interest. The government may not meet its burden of proof with “shoddy data or reasoning.”

The government’s data sets: In Duncan, the government, represented by the California attorney general, failed to carry its burden of proving the confiscation statute to be constitutional. The government easily passed the first step of intermediate scrutiny: reducing violent gun crime is an important objective. The government failed, though, in showing that confiscation is “a reasonable fit.” The court’s analysis concentrated on the attorney general’s evidence, which was found to be shallow and unpersuasive.

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To begin with, the A.G. had two databases about mass shootings in the United States. One was from Mother Jones magazine. “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,” wrote the court.

Although the Duncan opinion did not say so, analysis by two scholarly experts has come to precisely this conclusion about the Mother Jones material. Grant Duwe, a criminologist for the Minnesota Department of Corrections, is author of “Mass Murder in the United States: A History” (2007), a leading scholarly book on the subject. He wrote that Mother Jones missed more than 40 percent of the cases which met its selection criteria. James Fox is professor of criminology at Northeastern University, formerly the dean, and author of 15 books, including “Extreme Killing: Understanding Serial and Mass Murder” (2d ed. 2014). Fox pointed out that Mother Jones did not consistently follow its purported selection criteria.

The second database of mass shootings came from Michael Bloomberg’s “Mayors Against Illegal Guns,” which has now merged into Bloomberg’s “Everytown” organization. The Bloomberg data set covered mass shootings from 2009 to 2013. Benitez reviewed it carefully and found that is “tends to prove the opposite of a justification for § 32310 (c) & (d) [the confiscation statute], i.e., it tends to prove there is no need to dispossess and criminalize law-abiding responsible citizens currently possessing magazines holding more than 10 rounds.”

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Reviewing every item in the Bloomberg data, the judge found that most items did not specify what magazine(s) was used, or how many shots were fired. Many mass shootings are perpetrated with revolvers or shotguns, which are unaffected by the magazine ban. Many others were perpetrated with semi-automatic pistols, in incidents where Bloomberg showed no evidence that the magazine was over 10 rounds. Out of the 92 cases in the Bloomberg data set, only 6 involved a magazine with more than 10 rounds. Three of these involved illegal acquisitions, suggesting that a superfluous law targeting law-abiding gun owners would not affect them.

Banning common arms because they are used in some rare crimes “is like wearing flip flops on a slippery slope. A downhill slide is not hard to foresee.” Even if magazines over 10 were unobtainable, mass killers could just use shotguns, or multiple revolvers, as they do now.

The government’s experts: Next, the court analyzed preliminary witness declarations from the government’s four experts. These “were made up of anecdotal accounts, collected by biased entities, upon which educated surmises and tautological observations are framed. A statute criminalizing the mere possession of an integral piece of a constitutionally protected firearm, cannot be justified on the basis of defective data or emotion-driven claims.”

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Daniel Webster. Webster directs the Center for Gun Policy and Research at the Bloomberg School of Public Health, Johns Hopkins University. In the Duncan opinion, he comes off the best of the experts, because he frankly acknowledged the lack of evidence: “He concedes that robust supporting data is missing. … He grudgingly admits in his declaration that ‘… available data and statistical models are unable to discern the effect.'”

Lucy P. Allen. Allen is a managing director at NERA Economic Consulting, which was previously contracted to provide analysis in support of New York’s 2013 ban on magazines and many firearms. Her expert report was based on the (unscientific) Mother Jones data, plus “a study by the Citizens Crime Commission of New York City covering 1984-2012. ” “She admits that between the two sources, ‘[f]or many of the mass shootings, the data does not indicate whether a large-capacity magazine is used.'” She also used a data set from the National Rifle Association’s Institute for Legislative Action, “but admits that ‘it is not compiled scientifically.'” Lacking reliable data, her expert analysis was unpersuasive.

John Donahue. The Stanford University law professor merely cited “a few news articles and little more.” He “belittles the possibility of an elderly or disabled homeowner needing a firearm for self-defense from a violent home invasion that would hold enough rounds such that reloading was not necessary.” He opined that such a victim could just reload.

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Actually, noted Benitez, a newspaper article supplied by the attorney general described just such a scenario. “Among the Attorney General’s evidentiary presentation is a news account of a law-abiding woman and her husband who late one night needed to fire a gun in self-defense against armed robbers.” After two armed men broke into her home, Susan Gonzalez fired 10 shots from her .22 caliber pistol. “Unfortunately, out of ammunition, she was shot again by the other armed attacker. She was not able to re-load or use a second gun. Both her and her husband were shot twice.”

Ken James. The final expert was the retired police chief of Emeryville, Calif., a compact town between Berkeley and Oakland. The court agreed with his statement that “high-capacity” magazines in criminal hands are dangerous. “He does not, however, try to explain why forcing law-abiding individuals to disarm and dispossess themselves of magazines holding more than 10-rounds is the solution. He simply suggests that victims have not used them in the past and so they do not need them now.” Yet, “It is hardly surprising, however, that law-abiding citizens in California, who have been prohibited for years from buying guns with magazines holding more than 10 rounds, would fire no more than 10 rounds in a self-defense situation….Lastly, James’ declaration relies on a position paper that appears to have been inadvertently omitted.”

As in virtually every case involving a challenge to gun control, the state’s important interest was promoting public safety. However, the evidence before the court showed that the banned magazines pose little threat to public safety; that they are very rarely used in mass-shootings, or any other type of crime. The court deemed the magazine ban “a haphazard solution likely to have no effect on an exceedingly rare problem, while at the same time burdening the constitutional rights of other California law-abiding responsible citizen[s].” Thus, the confiscation law failed intermediate scrutiny.

The Sunnyvale Case: In the 2015 case Fyock v. Sunnyvale, a three-judge panel of the 9th Circuit upheld a district court’s decision not to issue a preliminary injunction against a magazine confiscation ordinance in Sunnyvale, a densely-populated town in Silicon Valley. Benitez explained that whatever evidence the Fyock court had relied on for its decision, he had to make the Duncan decision based on the evidence that was actually before him. That evidence was plainly deficient to pass intermediate scrutiny.

Arguably, a decision about Sunnyvale could not necessarily be extrapolated to California as a whole. Law enforcement “response times are undoubtedly” slower in rural areas than in dense cities. Wealthy Sunnyvale may have residents “wealthy enough to purchase multiple firearms or live in gated, security-guarded enclaves.”

Reasonable fit: The magazine ban ballot initiative had declared “No one except trained law enforcement should be able to possess these dangerous magazines.” Benitez countered: “The rationale is anathema to the United States Constitution’s Bill of Rights guarantee of a right to keep and bear arms. It is a right naturally possessed by regular, law-abiding responsible citizens, whom are neither reliant upon, nor subservient to, a privileged, powerful, professional police state.” Benitez was born in Havana in 1950, so perhaps he is aware of how the Castro regime used gun confiscation to impose tyranny — and how the Chavez/Maduro dictatorship and their Cuban secret police have done the same thing to Venezuela.

A “reasonable fit” would allow responsible law-abiding citizens to continue to possess magazines that they have possessed and used properly for many years. This includes honorably discharged members of the armed forces. “What possibly better citizen candidates to protect the public against violent gun-toting criminals?” The same for Californians who have been issued concealed carry permits by their sheriffs, following an extensive background check. “California’s statute does not except such proven, law-abiding, trustworthy, gun-owning individuals.”

Far from being “a reasonable fit,” the confiscation was not fit at all. It “indiscriminately hammers all that is in its path. Here, it also hammers magazines out of the hands of long time law-abiding citizens. It hammers the 15-round magazine as well as the 100-round drum. And it throws the law-abiding, self-defending citizen who continues to possess a magazine able to hold more than 10 rounds into the same jail cell as the criminal.”

The gun control lobbies’ phrase du jour, “gun violence,” is not “a talismanic incantation to justify any exercise of state power.” To the contrary, “violent gun use is a constitutionally-protected means for law-abiding citizens to protect themselves from criminals.” “Gun violence to carry out crime is horrendous and should be condemned by all. Defensive gun violence may be the only way a law-abiding citizen can avoid becoming a victim.”

Takings: Besides the Second Amendment claim, the Duncan plaintiffs also argued that the magazine confiscation constituted a taking of property without just compensation, in violation of the Fifth Amendment. The court agreed.

Compensation is not required when the property taken is a public nuisance. For example, a person is using a building as a crack house, and the house is forfeited. The California statute had declared magazines over 10 rounds to be a public nuisance. “That designation is dubious. As the Supreme Court recognized a decade before Heller, ‘[g]uns in general are not ‘deleterious devices or products or obnoxious waste materials.” Staples v. United States, 511 U.S. 600, 610 (1994).”

The court could have also cited a 19th century Tennessee case, which held that although the legislature could prohibit the sale of small handguns, it had to allow licensed merchants to dispose of their existing inventory, presumably in sales to Tennessee residents. State v. Burgoyne, 75 Tenn. (7 Lea) 173 (1881). (Burgoyne did not involve the Second Amendment, which at the time was considered not to limit state governments. The Tennessee ban was repealed long ago, was an attempt to disarm free blacks, who could not afford expensive guns. The portion of the opinion upholding the sales restriction would be very dubious under Heller.)

Citing the Supreme Court’s recent decision in Murr v. Wisconsin, 2017 WL 2694699 (Jun. 23, 2017), Benitez observed that the takings clause always comes into play when there is: 1. a physical invasion of property; or 2. deprivation of all economic use of the property. The confiscation statute was both. The option to sell magazines to a California firearms dealer was useless, since the shipping and handling costs to send them to other jurisdictions probably rendered the California sales price close to zero.

Remedy: “Defendant Attorney General Xavier Becerra” and all his employees, and all state, local, and federal peace officers “who gain knowledge of this injunction order” are enjoined from enforcing the statute. Further, the defendant shall give “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.”