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What the ‘Unconstitutional’ High-Capacity Magazine Ban Could Mean for Future Gun Laws

The NRA is already celebrating a “huge win” in California

A 30 round magazine, left, and a 10 round magazine, right, rest below an AR-15 rifle at the Ammunition Storage Component company in New Britain, Conn., . In the wake of Connecticut lawmaker's vote to ban high-capacity magazines after their passage of restrictive gun control law, the U.S. Senate is debating gun control legislationGun Control Congress

A 30-round magazine, left, and a 10-round magazine, right, rest below an AR-15 rifle at the Ammunition Storage Component company in New Britain, CT.

Charles Krupa/AP/REX/Shutterstock

In an opinion being trumpeted by the National Rifle Association as a “huge win for gun owners,”  a federal judge has ruled that California’s ban on high-capacity gun magazines is unconstitutional. District judge Roger Benitez struck down the California ban on magazines holding more than 10 bullets, ruling that the second amendment guarantees access to such magazines for “self-defense at home.”

In an at-times lurid 86-page decision — which begins with three bloody, true-crime vignettes of home invasions and hails of bullets — Benitez writes less like a judge than a gun-lobby pamphleteer. In 2017 alone, California’s “population of 39 million people endured 56,609 robberies, 105,391 aggravated assaults and 95,942 residential burglaries. There were also 423 homicides in victims’ residences,” the judge writes. “As evidenced by California’s own crime statistics, the need to protect one’s self and family from criminals in one’s home has not abated…. Law enforcement cannot protect everyone… Fortunately,” Benitez continues, “the Second Amendment protects a person’s right to keep and bear firearms.”

For Benitez, California’s ban on high-capacity magazines runs afoul of the constitutional right, established under the Supreme Court’s District of Columbia v. Heller decision, to keep a handgun in the home. The judge found that the state’s decision that 10 bullets in a single magazine is sufficient to provide for self defense, while helping to limit the impact of mass shootings, had been reached “arbitrarily” — and disregards the popularity of guns like “the Glock 17 pistol, which is designed for, and typically sold with, a 17-round magazine,” or a Ruger youth rifle, with sales in the millions, that is often equipped with magazines of 15 or 25 rounds.

Benitez writes that the Supreme Court established a simple test in its Heller decision for whether banning certain weapons is unconstitutional. “It is a hardware test,” he writes. “Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are ‘yes,’ the test is over. The hardware is protected.”

Benitez adds that the California law is also improper for creating “substantial criminal penalties [for a] law-abiding, responsible, citizen who desires such magazines to protect hearth and home,” which, Benitez writes, “imposes a burden on the constitutional right that this Court judges as severe.”

The district judge recognizes, only obliquely, that the freedom of law-abiding gun owners could create severe costs for victims of mass shootings: “This decision is a freedom calculus decided long ago by Colonists who cherished individual freedom more than the subservient security of a British ruler,” Benitez writes, waxing historical. “The freedom they fought for was not free of cost then, and it is not free now.”

The California law in question has never been implemented, having been suspended in prior litigation. And Benitez’s decision will, too, likely be tied up in an appeals process, before its logic can be applied to other state laws limiting magazine size. (Other courts have approved magazine limits in effect in states including New York and Connecticut, as constitutional.)

Even the NRA appears to believe that Benitez ruling could be overturned. “Unfortunately, Friday’s opinion is not likely to be the last word on the case,” the gun lobby wrote after the decision was handed down on Friday. “The state will likely appeal to the Ninth Circuit, which has proven notably hostile to the Second Amendment in past decisions.”

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