By Dave Workman
Editor-in-Chief
Two major amicus briefs supporting a federal district court ruling which struck down California’s ban on so-called “large capacity” magazines were filed Thursday with the Ninth U.S. Circuit Court of Appeals in San Francisco, setting the stage for what may eventually become a battle before the U.S. Supreme Court.
The Second Amendment Foundation submitted its amicus brief supporting the plaintiffs in a federal case known as Duncan v. Bonta. The brief was prepared by attorneys Edward A. Paltzik, Serge Krimnus and Meredith Lloyd with Bochner PLLC, refuting California’s argument that gun powder storage laws relate to the state’s magazine ban.
Almost simultaneously, a coalition of 25 state attorneys general led by Montana AG Austin Knudsen and Idaho AG Raúl Labrador, filed their own 29-page brief, declaring in the opening paragraph, “Time and again the Supreme Court has reaffirmed that the Second Amendment is not a second-class right…Because California Penal Code Sections 32310(a) and 16740 regulate conduct covered by the “plain text” of the Second Amendment—“keep[ing] and bear[ing] Arms,” see U.S. Const. amend. II—they are presumptively unconstitutional.”
In addition to Montana and Idaho, participating states are Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Florida, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Virginia, West Virginia, and Wyoming.
In a statement from Knudsen’s office, the state AGs tell the appeals court, “The district court properly concluded that California’s law unconstitutionally restricts the fundamental right to keep and bear common firearm magazines typically possessed for lawful purposes. This Court should follow the Supreme Court’s mandate from Heller, McDonald, and Bruen by affirming the district court based on the text, history and tradition associated with the Second Amendment and magazines with a capacity over ten rounds.”
Explaining their own brief, SAF officials zero in on the state’s argument that gunpowder storage laws have no analogous or otherwise relevant connection to the magazine ban.
“California continues to grasp at straws by attempting to defend its magazine ban based on gunpowder storage laws,” said SAF Executive Director Adam Kraut, who is also a practicing attorney. “The contention that such laws are somehow analogous to the modern day prohibition of firearm magazines capable of holding more than ten cartridges is, at best, a giant stretch of logic. The state’s reliance on these laws suggests they have no credible justification for defending a ban which has already been declared unconstitutional twice.”
SAF founder and Executive Vice President Alan M. Gottlieb noted his organization was a plaintiff in an earlier challenge of the magazine ban, known as Weise v. Becerra, which was stayed pending the outcome of the Duncan case.
“California has been fighting tooth and nail to defend an extremist gun control statute that common sense dictates is absurd, as well as unconstitutional, and unquestionably impotent in preventing violent crime,” Gottlieb observed. “Attorney General Rob Bonta’s contention that gunpowder storage restrictions somehow equate to limiting the number of rounds in a magazine is ridiculous.”
The magazine ban was overturned—for the second time since 2017—by U.S. District Judge Roger T. Benitez in the Southern District of California.
In his 71-page ruling, Judge Benitez wrote, “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.”
If California’s ban is struck down, it will have as massive ripple effect across several states. The immediate impact will be felt in Oregon and Washington, which are both in the Ninth Circuit and are also controlled by anti-gun-rights Democrats who have adopted similar bans.
