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April 5, 2019

Making Standard Magazines Great Again in California … For Now

By Larry Keane

Last Friday, U.S District Judge Roger Benitez answered the existential question of whether a half-loaded magazine was half full or half empty.

Judge Benitez said freedom comes in a fully-loaded standard capacity magazine.

The judge delivered Californians a decisive victory when he enjoined a state law that unconstitutionally banned firearm magazines from holding over 10 rounds of ammunition, but stayed his decision just days later while it is appealed. In his 86-page decision, Judge Benitez said that the law “places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny.” Furthermore, Benitez’s decision concluded California’s law would criminalize a huge portion of the state’s lawful gun owners by limiting magazines to a completely arbitrary number that effectively outlaws many standard rifle and handgun magazines as currently sold.

Magazine Ban: A Misguided Approach

California’s magazine ban was initially enacted, in part, by local lawmakers as a political response to recent tragedies perpetrated by criminals. Yet Benitez saw this explanation for what it is: the wrong approach. His decision states that just as “bad political ideas cannot be stopped by criminalizing bad political speech … neither can the government response to a few mad men with guns be a law that turns millions of responsible law-abiding people trying to protect themselves into criminals.”

American Right of Self Defense

The right of American citizens to protect themselves, their families, and their homes is a crucial element in Benitez’s decision. He cited several examples of home defense in California, two of which involved a woman who fired on an intruder but ran out of bullets. In a life-and-death situation, the government has absolutely no right to regulate how much ammunition it takes to defend one’s self or one’s family. Ironically, however, California’s magazine law would have done nothing to prevent armed home invasion or the vast majority of other crimes committed with firearms. According to a National Institute of Justice study, there are “relatively few attacks that involve more than 10 shots fired” and that the average assailant in violent firearm crimes fires less than four shots. Moreover, another study revealed that modern sporting rifles, which are undoubtedly the primary target of California’s magazine limitation law, were “never used in more than a modest fraction of all gun murders.” Knowing this data, Judge Benitez is right to see the magazine ban as a misguided policy that only hurts law-abiding gun owners and would do nothing to further prevent the vast majority of crimes involving a firearm.

What’s Next?

Predictably, Judge Benitez’s decision is not the final word on magazine bans at either the state or federal level. California’s Attorney General Xavier Becerra announced Tuesday he a filed motion to stay the court’s injunction. Judge Benitez issued a stay while the case is appealed to the U.S. Court of Appeals for the Ninth Circuit. The stay prohibits confiscation and dispossession of any privately-owned magazines, even if they were purchased in the narrow five-day window during which there was no restriction.

Sadly, it also appears that some federal lawmakers are equally blind to the what Judge Benitez read in the Supreme Court’s landmark Heller ruling. Last February, Congressional Democrats introduced a bill to ban any magazine carrying over 10 rounds of ammunition that is farcically titled the “Keep Americans Safe Act.” It is clear that at both the federal and state level, magazine bans will not stop violent criminals. They will only disarm legal gun owners who want to protect themselves and their families.

For the moment, a 10-round magazine is less than half empty.

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