Duncan v. Bonta

695 F.Supp.3d 1206

Virginia DUNCAN, et al., Plaintiffs, v. Rob BONTA, in his capacity as Attorney General of the State of California, Defendant.

Case No.: 17-cv-1017-BEN (JLB)

United States District Court, S.D. California

Signed September 22, 2023

Carl D. Michel, Sean Brady, Anna M. Barvir, Michel & Associates PC, Long Beach, CA, for Plaintiffs.

Attorney General, State of California Office of the Attorney General, San Diego, CA, Alexandra Robert Gordon, John Darrow Echeverria, CA Dept. of Justice, Attorney General's Office, San Francisco, CA, Anthony P. O'Brien, California Office of Attorney General, Sacramento, CA, Robert Leslie Meyerhoff, Kevin James Kelly, California Attorney General, Los Angeles, CA, for Defendant Xavier Becerra.

DECISION

ROGER T. BENITEZ, United States District Judge

We begin at the end. California's ban and mandatory dispossession of firearm magazines holding more than 10 rounds (California Penal Code § 32310(c) and (d)), as amended by Proposition 63, was preliminarily enjoined in 2017.¹ That decision was affirmed on appeal.² In 2019, summary judgment was granted in favor of Plaintiffs and § 32310 in its entirety was judged to be unconstitutional.³ Initially, that decision was also affirmed on appeal.⁴ However, the decision was re-heard and reversed by the court of appeals en banc.⁵ In 2022, the United States Supreme Court granted certiorari, vacated the appellate en banc decision, and remanded the case.⁶ The court of appeals, in turn, remanded the case to this Court "for further proceedings consistent with New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022)."⁷ All relevant findings of fact and conclusions of law set forth in the prior decision concluding § 32310 is unconstitutional are incorporated herein.

I. INTRODUCTION

"There is a long tradition of widespread lawful gun ownership by private individuals in this country," according to the United States Supreme Court.⁸ Americans have an individual right to keep and bear firearms.⁹ The Second Amendment to the United States Constitution "guarantee[s] the individual right to possess and carry weapons in case of confrontation."¹⁰ This guarantee is fully binding on the States and limits their ability to devise solutions to social problems.¹¹ And the guarantee protects "the possession of weapons that are 'in common use,' "¹² or arms that are "typically possessed by law-abiding citizens for lawful purposes."¹³ These are the decisions this Court is bound to apply. "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 or criticism from the political branches."¹⁴

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.

The detachable firearm magazine solved a problem with historic firearms: running out of ammunition and having to slowly reload a gun.¹⁵ When more ammunition is needed in case of confrontation, a larger the magazine is required. Many gun owners want to have ready more than 10 rounds in their guns. As a result, in the realm of firearms, magazines that hold more than 10 rounds are possibly the most commonly owned thing in America. These larger magazines number over one hundred million. For handguns, the most popular sizes range up to 17 rounds; the most popular size for rifles is 30 rounds. Yet, regardless of the overwhelming popularity of larger magazines, California continues to prohibit any magazine capable of holding more than 10 rounds.¹⁶

There is no American tradition of limiting ammunition capacity and the 10-round limit has no historical pedigree and it is arbitrary and capricious. It is extreme. Our federal government and most states impose no limits¹⁷ and in the states where limits are imposed, there is no consensus. Delaware landed on a 17-round magazine limit.¹⁸ Illinois and Vermont picked limits of 15 rounds for handguns and 10 rounds for a rifles.¹⁹ Colorado went with a 15-round limit for handguns and rifles, and a 28-inch tube limit for shotguns.²⁰ New York tried its luck at a 7-round limit; that did not work out.²¹ New Jersey started with a 15-round limit and then reduced the limit to 10-rounds.²² The fact that there are so many different numerical limits demonstrates the arbitrary nature of magazine capacity limits.

In a stealth return to the interest balancing test rejected by Heller and Bruen, the State ostensibly justifies its magazine limits by deeming the smaller magazines "well-suited" for its citizens.²³ Suitability, in turn, is based on concocted statistics about what a hypothetical average person needs to defend against an attacker or attackers in an average self-defense situation. Based on this hypothetical statistically average case scenario, the State permits its citizen to have a gun, but the State decides the number of rounds in the gun that it finds suitable.²⁴

In so doing, the State denies a citizen the federal constitutional right to use common weapons of their own choosing for self-defense. There have been, and there will be, times where many more than 10 rounds are needed to stop attackers.²⁵ Yet, under this statute, the State says "too bad." It says, if you think you need more than 10 chances to defend yourself against criminal attackers, you must carry more magazines. Or carry more bullets to hand reload and fumble into your small magazine while the attackers take advantage of your pause. On the other hand, you can become a criminal, too. So, the previously law-abiding California citizen who buys and keeps at her bedside a nationally popular Glock 17 (with its standard 17-round magazine) becomes the criminal, because the State dictates that a gun with a 17-round magazine is not well-suited for home defense.²⁶

Numbers vary, but some estimate that 81 million Americans own between 415²⁷ and 456²⁸ million firearms. Further, millions of Americans across the country own large capacity magazines. "One estimate . . . shows that . . . civilians possessed about 115 million LCMs out of a total of 230 million magazines in circulation. Put another way, half of all magazines in America hold more than 10 rounds."²⁹ A more recent large-scale survey estimates that Americans today own 542 million rifle and handgun magazines that hold more than 10 rounds.³⁰ Home defense and target shooting are the two most common reasons for owning these larger magazines.³¹ Moreover, the survey reports 48% of gun owners have owned a handgun or rifle magazine that holds more than 10 rounds.³² But California bans these typically possessed magazines kept and used for self-defense.

Why are larger magazines chosen for self-defense? Crime happens a lot. One recent estimate holds that guns are needed defensively approximately 1,670,000 times a year.³³ Another report, originally commissioned and long cited by the Centers for Disease Control and Prevention estimated that there are between 500,000 and 3,000,000 defensive gun uses in the United States every year.³⁴ Woe to the victim who runs out of ammunition before armed attackers do. The police will mark the ground with chalk, count the number of shell casings, and file the report.

All of this was decided earlier.

What remains to be done? California Penal Code § 32310 must be assessed in light of Bruen. Now, on remand, the State has to justify this ban under Bruen, which makes clear that "[t]o justify its regulation, the government may not simply posit that the regulation promotes an important interest."³⁵ After all, " 'the very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.' "³⁶ So, the State must demonstrate that its extreme ban is consistent with this Nation's historical tradition of firearms regulation. As explained below, there is no national tradition of prohibiting or regulating firearms based on firing capacity or ammunition capacity.

II. CONSTITUTIONAL STANDARDS

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."³⁷ "[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."³⁸ According to Heller, "[t]he Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.' "³⁹ "The first salient feature . . . is that it codifies a 'right of the people.' "⁴⁰ Heller then examines the substance of the constitutional right, the verbs to keep and to bear and their object: arms. So, what does it mean to keep and bear arms?

The Supreme Court concludes, "[t]he 18th-century meaning [of "arms"] is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined 'arms' as 'weapons of offence, or armour of defence.' Timothy Cunningham's important 1771 legal dictionary defined 'arms' as 'any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.' "⁴¹ In the past, the term "arms" included weapons that were not specifically designed for military use and were not employed in a military capacity. "Although one founding-era thesaurus limited 'arms' . . . to 'instruments of offence generally made use of in war,' even that source stated that all firearms constituted 'arms,...