Federal Judge Rules High Capacity Magazine Ban Unconstitutional – Here’s What Happens Now


Editor Note: The White House petition for President Trump to direct the Department of Justice to declare “Second Amendment Sanctuary Status” in all 50 states for all United States citizens continues.  You can find that link at the very bottom of this article.  Scroll down to sign it today.

Just when we thought there were no judges left in California who would uphold the Constitution, we were proven wrong.

On Friday, the U.S. District Court for the Southern District of California ruled that California’s ban on ammunition magazines holding more than ten rounds violates the Second Amendment.

And it’s sure to have implications in legal battles across the country, including states like Connecticut, New York and New Jersey.

U.S. District Judge Roger Benitez blocked the implementation of California’s “high-capacity” magazine ban two days before it was to go into effect.

Judge Benitez said the ban would never survive the test of District of Columbia v. Heller in 2008, saying:

“When the simple test of Heller is applied … the statute is adjudged an unconstitutional abridgment.”

It’s been an ongoing battle. On July 17, 2018, a three-judge panel from the U.S. Circuit Court of Appeals for the Ninth Circuit upheld Benitez’s ruling, voting 2-to-1 against the ban and sending the case back to Benitez.

Then on Friday, he again ruled against the ban, issuing an order barring California Attorney General Xavier Becerra from enforcing the ban.

His ruling was based heavily upon Heller, saying:

“Millions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense. This is enough to decide that a magazine able to hold more than 10 rounds passes the Heller test.“

The case is Duncan v. Becerra, No. 2:17-cv-56-81 in the U.S. District Court for Southern California.

“Individual liberty and freedom are not outmoded concepts,” he wrote as he declared the law unconstitutional.


Conclusion From The Ruling

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 law-abiding 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 law-abiding 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.


The state of California has actually prohibited buying or selling such magazines since 2000, but those who had them before then were allowed to keep them.

That changed in 2016, when the Legislature and voters approved a law removing that provision.

The California arm of the National Rifle Association sued.  Benitez sided with their argument that the ban on magazines infringes on the Second Amendment right to bear arms.

Benitez had temporarily blocked the law from taking effect with a 2017 ruling.

But the latest ruling goes much farther, in essence striking down the entire ban.  That allows individuals to legally acquire the high-capacity magazines for the first time in nearly two decades.

Chuck Michel is an attorney for the NRA and the California Rifle & Pistol Association.

“We’re still digesting the opinion but it appears to us that he stuck down both the latest ban on possessing by those who are grandfathered in, but also said that everyone has a right to acquire one,” Michel said.

California Attorney General Xavier Becerra isn’t happy.  He said in a statement that his office is “committed to defending California’s common-sense gun laws” and is reviewing the decision and evaluating its next steps.

Becerra has previously said that similar Second challenges have been repeatedly rejected by other courts. He cited at least seven other states and 11 local governments that already restrict the possession or sale of large-capacity ammunition magazines.

There’s very little doubt that the conflict on magazine size will ultimately end up in the U.S. Supreme Court.

Michel said the decision “recognizes that the Second Amendment is not a second-class right and that the state has to meet a high burden before it can pass a law that infringes on the right to keep or bear arms.”

In his ruling, Benitez described three home invasions.  In two of them, the female victims ran out of bullets.  In the third, the woman was wearing pajamas… but had a high-capacity magazine.  She took on three people invading her home, firing at them while calling for help.

“She had no place to carry an extra magazine and no way to reload because her left hand held the phone with which she was still trying to call 911,” the judge wrote.

The woman killed one attacker while two escaped.

Judge Benitez ruled that magazines holding more than 10 rounds are “arms” under the U.S. Constitution.  He also said the California law:

“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.”

Benitez was an appointee of Republican President George W. Bush. 

He recognized that the goal of the California law is to deter mass-shootings, such as the San Bernardino shooting killed 14 and injured 22.

But he also called such shootings “exceedingly rare” and stressed that everyday robberies, rapes and murders can be countered with firearms.

The governor of California had no comment on Friday.

California seems to frequently make news for some of the more outlandish plans to infringe on rights.  In February, they went so far as to go after the safety of police officers.

This time the debate surrounding the authorization for police to utilize deadly force was again challenged, reported KCRA News.

Currently, officers who fear for their lives are able to make and carry out the decision to neutralize a hostile subject. With the proposed legislation, deadly force would only be able to be used if other de-escalation tactics were either unfeasible or attempted without success.

“This means they may use force only if there is no reasonable alternative, including warnings, verbal persuasion or other non-lethal methods of resolution or de-escalation,” Democratic Assemblywoman Shirley Weber said.

Weber claimed that she would try to set a countrywide standard to only allow police to use deadly force to prevent serious injury or death.

If you haven’t heard, New Hampshire is putting officer’s lives at risk as well.

There is no debate here. This change WILL result in more officers being killed on duty.

If this passes, more officers in real and significant danger will not pull the trigger on their service weapons in fear for the public fallback and potential for going to prison simply for protecting their own lives. We are letting narratives control how our officers live and work.

In 2018 we lost around 150 officers while they were serving our communities. We refuse to let 2019 lead to another increase in this metric.

As it stands right now, officers are trained to use multiple techniques to remedy dangerous situations that put their lives and the lives of innocent civilians at risk. When these situations escalate, tough decisions must be made.

defensive handgun uses
California officers face new challenges with the proposed bill. (Photo courtesy LovableNinja)

Democratic Senate President Toni Atkins stated that, “We must acknowledge that we have a problem with disproportionate police use of force here in California.”

If you didn’t already see this racial narrative debunked by 2017’s deadly force stats, check out this article right here.

In fact, the number of California law enforcement-related deaths dropped by one-third last year, from 172 in 2017 to 114 in 2018…. with no major changes in legislation.

We are officers, supporters, family members, friends, neighbors, and patriotic Americans that are tired of seeing blue blood being spilled in the streets. We see the negativity in the media. We see the skewed narratives and bogus accusations that label every law enforcement officer as a racist murderer seeking bloodlust. And we are tired of it.

Let’s be honest folks. 99.99% of officers don’t want to wake up and go shoot someone during their shift. Officers don’t patrol the streets hoping they’ll get to pull the trigger. They want to serve, protect, make their community a better place and then go home to their families, just like every other American does at the end of the day.

When will we end the hate against our brothers and sisters in blue? When will we stop allowing criminals to run the show? When will we stop letting violent gang members and murderers back on the street just so they can turn around and commit another heinous act?

It’s time to stop. It’s time to think. And it’s time to move our nation in the direction it needs.

I’ll leave you with a quote from a very wise man, Edmund Burke.

“The only thing necessary for the triumph of evil is for good men to do nothing.” 

If you don’t stand up and voice your opinion about these very real issues, who will be there to protect you when you need it most?

The Year They Came For The Guns

If Democrats get their way, say goodbye to “high capacity magazines”… and a whole slew of guns that are currently legal.

And this time, it’s not just in far left, rogue states like the People’s Republic of Connecticut and California.

Just last month, the Washington state House Committee on Civil Rights and Judiciary voted to move two pieces of legislation out of committee and onto the House floor for further consideration.

House Bill 1068 was sponsored by Representative Javier Valdez (D-46) and was filed at the request of Attorney General Bob Ferguson. It passed the committee by a vote of 9-6.

If passed and signed into law, this bill would ban the purchase, sell or transfer of high-capacity magazines, which they define as any device that can accommodate more than 10 rounds.

The bill does “grandfather” individuals who lawfully possess said magazines prior to the date on which the law is enacted.

The bill also seeks to limit the usage of high-capacity magazines by those who lawfully possess them. These magazines must be possessed “only on property owned or immediately controlled by the person, or while engaged in lawful use at a duly licensed firing range, or while engaged in lawful outdoor recreational activities, such as hunting, or while traveling to and from these locations…provided that the high-capacity magazine is stored unloaded and in a separate, locked container during transport”.

House Bill 1225 was sponsored by Representative Laurie Jenkins(D-27). This bill would require law enforcement to seize firearms and ammunition when they are called to the scene of an alleged domestic violence incident and hold them for at least 5 days.

In what would seemingly be a complete violation of due process, this bill would also require the owner to go through the process of having to get their property back.

Read: It’s Time for All Police to Leave Los Angeles

Pursuant to RCW 9.41.345, the owner must go through a process in which the confiscating authority must determine that the owner is eligible to maintain possession of the property.

All documentation regarding the confiscated weapons then be turned over to a judge for review. This documentation is created by separating the alleged victim and the alleged suspect.

Law enforcement will then ask the victim whether the suspect has a concealed carry license, where the weapons and ammunition are in the residence and if he or she has access to other firearms stored in a different location. The law enforcement official can confiscate all firearms and ammunition on the premises and can request to take possession of any items stored at a different location. 

Similar legislation has been shot down in the past in Connecticut, of all places, where groups argued this could lead to racial profiling and bias.

The committee also acted on House Bill 1739, rescheduling this vote until next week. This bill, also sponsored by Representative Valdez at the request of the Attorney General, would end a person’s ability to manufacture firearms for personal use.

It also contains provisions that create further addressing of federal laws that bans undetectable firearms. The bill defines ‘undetectable’ as any firearm that does not have enough trace metal to be detected by metal detector.

It’s not the only proposed legislation from Democrats this year.

In January, they put up one of their heftiest attacks on the Second Amendment since 1994, aiming to ban 205 ‘assault weapons’ by name in 2019.

The Democrats introduced the Assault Weapon Ban of 2019 targeting the sale, transfer, importation and manufacturing of ‘military-style’ weapons.

Guns.com listed the specifics of the bill. ‘The term “assault weapon” would be defined as a semi-automatic with a detachable magazine that included one of a list of cosmetic features that are deemed “military characteristics” such as a threaded barrel, pistol grip or folding stock.’

Perhaps that explains why one officer wrote the following article for Law Enforcement Today in December – I Will Not Comply.

In case you missed it… here it is.


The New Jersey Attorney General has banned large capacity magazines.  They have refused to rule out door to door enforcement and wide spread confiscation.

There’s something residents need to know.


Liberal politicians ARE coming for our guns and ammunition. It starts slowly, like forcing you to turn in magazines that you paid for and have been legal until now.

Do they really believe we’re going to knock on doors and disarm our fellow citizens?  Do they expect us to put our lives on the line to enforce unconstitutional orders?


I might be an officer in New Jersey.  But you will never know my name… because if you did, I would lose my ability to provide for my family.

The truth is that I could be an officer anywhere.  In your town or city.  In your state.  You will never know who I am… but you know me.  I am your neighbor.  I am your friend.  I am your protector.

All you need to know is one thing.  No matter how many anti-gun orders you decide to make… no matter how you use the media to get your message out… no matter how you try and politicize police departments…


My oath isn’t to politicians.  It’s to serve and protect.  It’s to defend the Constitution.  It’s not to be a pawn.  My oath is to the country and Her people.

Last week, New Jersey banned active police officers from possessing their duty weapons while off duty.  Apparently they’re going to change that thanks to media and union pressure.

The union.  A collection of those who, in many cases, have traded their spines for a few pennies. They never should have allowed this to happen.

New Jersey “leaders” have also made it clear they don’t recognize the provisions of the federal Law Enforcement Officers Safety Act (LEOSA). It’s an act that allows retired officers to carry our weapons or hollow point ammunition.

Our Attorney General says it applies only to those who carry firearms in interstate commerce, and that if we aren’t leaving the state immediately, it doesn’t count.  That’s NOT why it was created.

Free Freedom Stick?  See What This Arms Company Is Doing For America.

But you can’t expect these liberal elitists who have never been shot at to understand that.

The point of it was to protect us and our families from criminals looking to get revenge and to protect those of us who have become targets thanks to the war that was launched on us by liberal politicians.  It was to allow us to be able to respond quickly. Because unlike those who sit on their high horses, we actually run TOWARDS gun fire and danger.

Now New Jersey officials they won’t recognize that law.


New Jersey’s law over gun magazines with a 10 round limit went into effect on December 10 and there’s no exception for law enforcement, meaning that we’re all breaking the law by carrying our assigned duty weapons while off duty.

Bergen County Prosecutor Dennis Calo issued a memorandum to us as a reminder that the prohibition of the possession of large-capacity ammunition magazines didn’t just apply to our neighbors… it also applied to us when we are off duty.


In May, the city council in Boulder, Colorado voted to ban possession of high capacity magazines, bump stocks and so-called assault rifles.  They grandfathered in people who already own the rifles.  But they said in order to continue legally owning them, residents are required to “certify” their guns with the police by December 27.

Residents have been told there is no database of gun owners being made (like anyone buys that).

But they ARE keeping a record of the number of rifles reported.

Read More: Police Frustration Is Rising

So far… the number reported is 87.  Officials say there are duplicate certificates in that count, making the true number even lower.

There are more than 100,000 people in the city, and CBS News puts gun ownership in Colorado at more than 34 percent.

That means there’s still somewhere around 34,000 firearms that aren’t certified.

It’s worth pointing out that Colorado has about 5,300 uniformed members of the Army National Guard.

Does anyone think patriots like me are going to truly just hand over or report our weapons to be listed on a database?

Do these officials believe officers like me are going to ultimately go to war with our own neighbors over confiscation?


My brothers and sisters, please don’t confuse those of us who hold the thin blue line with those who are trying to destroy it.

I am not alone.

We are with you.  We will stand shoulder to shoulder with you in the streets.




Here’s the petition.  If you believe we should be providing second amendment sanctuary status, we highly encourage you to sign it and pass it around.


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