Gun rights advocates are hailing a federal court ruling striking down California’s ban on high-capacity gun magazines as perhaps the broadest and most forceful judicial statement yet of the right to bear arms, an antidote to what they see as treatment of the Second Amendment as a “disfavored right.”
The sweeping decision by San Diego-based U.S. District Judge Roger Benitez declared unconstitutional a section of Proposition 63, approved by the state’s voters in 2016 after several mass shootings, which forbids possession of gun magazines that hold more than 10 rounds.
Benitez, an appointee of President George W. Bush, opened with a dramatic, anecdotal recitation of killings in which the victims tried to defend themselves only to run out of ammunition. He referenced the Nazi ban on Jews possessing weapons and reviewed recent mass shootings in the United States, saying there was no evidence a ban like California’s would have saved anyone.
“Bad political ideals cannot be stopped by criminalizing bad political speech,” Benitez wrote in the ruling, issued late last week. “Crime waves cannot be broken with warrantless searches and unreasonable searches. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals.”
The National Rifle Association’s Institute for Legislative Action called it “one of the strongest judicial statements in favor of the Second Amendment to date.” In a statement, the group’s executive director, Chris W. Cox, said it was a “landmark recognition of what courts have too often treated as a disfavored right.”
Chuck Michel, who represented plaintiff Virginia Duncan as well as the California Rifle and Pistol Association, said in an interview that the decision could be used to counter what he called the “judicial mischief” caused by other courts.
Eric Tirschwell, litigation director at Everytown for Gun Safety, said the decision underscored “the dangerous gun lobby view that more lethal firearms will make America safer.” He noted that every federal appeals court that has considered such restrictions has gone the other way.
The U.S. Court of Appeals for the 9th Circuit, where the case is headed, has not ruled on the merits. But in 2015, it refused to interfere with a lower court decision allowing the city of Sunnyvale, Calif., to impose a limit on large-capacity magazines.
Still, in the long debate over gun rights in the United States, the strong language of Benitez’s ruling will be used to reinforce the political claims of those facing increasing challenges in the wake of mass shootings.
A magazine, for a handgun or a rifle, is a spring-loaded container that feeds ammunition into the chamber of a semiautomatic weapon with each pull of the trigger. The Sandy Hook Elementary School shooter, for instance, used a rifle with a 30-round magazine, enabling him to fire 154 rounds in less than five minutes. Adam Lanza’s 2012 assault in Newton, Conn., left 28 dead, including 20 young children.
The Second Amendment reads: “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.”
But until the Supreme Court’s 2008 ruling in District of Columbia v. Heller , the high court had not applied the provision to individuals, for self-defense or any other purpose. And while saying in Heller that some regulations were “permissible,” the court has yet to elaborate.
Benitez took his cues from the Supreme Court’s majority opinion, written by Justice Antonin Scalia, who said that while the Second Amendment does not necessarily protect possession of arms designed largely for military use, it does cover weapons commonly chosen by people for lawful purposes, such as self-defense in their homes.
To make that point, Benitez stressed the millions of semiautomatics owned by Americans. It is clearly a weapon of choice, the judge said.
And he tried to demonstrate that high-capacity weapons have been in common use for centuries, tracing them to the late-15th century when, he said, Leonardo da Vinci designed a 33-shot weapon. From there, the judge highlighted the Lewis and Clark expedition, in 1803, when the explorers used a magazine that held 22 .465-caliber balls.
Using an argument most frequently heard by abortion rights advocates protesting restrictions that make the medical procedure inaccessible, Benitez noted that taking away the magazines is so burdensome as to actually take away the weapon, constituting a “prohibition on an entire class of arms that is overwhelmingly chosen by American citizens for the lawful purpose of self-defense.”
The fact that high-capacity magazines may or may not be more “lethal” than bullets in a revolver is not relevant constitutionally, he wrote: “The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.”
Most significantly to gun rights advocates, the decision said emphatically that the Second Amendment is no different than the First Amendment, or the Fourth and Fifth amendments, and all of the guarantees of the Bill of Rights, subject to “narrowly tailored” limits only when the government can demonstrate a compelling interest for them.
The California law “is not tailored at all,” Benitez wrote. “It fits like a burlap bag. It is a single-dimensional, prophylactic blanket thrown across the population of the state.”
The Supreme Court has in the past declined to review lower-court Second Amendment decisions. It rejected a review, for example, of the 2017 decision by the U.S. Court of Appeals for the 4th Circuit upholding Maryland’s ban on assault weapons and large-capacity magazines.
That ruling opened with a dramatic description of the Newtown mass shooting, in contrast to Benitez’s decision, which opened with dramatic tragedies that befell people trying to defend themselves.
Clarification: The original version of this story suggested that the 9th Circuit has upheld limits on large-capacity magazines. It has not issued a final ruling on the subject.