AP Photo/Michael Conroy

A legal challenge to California’s ban on the possession of magazine that can hold more than ten rounds has prompted 18 Democrat AG’s from around the country to weigh in on the side of the state. The case of Duncan v. Becerra is currently being heard in the 9th Circuit Court of Appeals, and these Attorneys General, led by the AG for the District of Columbia, have submitted a friend of the court brief with the 9th Circuit arguing California has the power to ban magazines without violating the 2nd Amendment rights of residents.  Additionally, these AG’s also say that any court using “intermediate scrutiny” in reviewing gun control laws like California’s magazine ban must defer to the state’s decision and cannot throw out the law on constitutional grounds.

The Attorneys General of D.C., Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island, Vermont, New Jersey, and Washington State claim that a federal judge erred when he blocked California’s law from going into effect.

Reasonable firearm regulations are fully compatible with the right to keep and bear arms protected by the Second Amendment. The erroneous interpretation advanced by the court below breaks sharply from these precedents. Its reasoning and non-deferential review of legislative judgments, if adopted by this Court, would tie States’ hands in responding to threats to public safety and impermissibly impinge on States’ policymaking authority.

While “reasonable firearm regulations” may not run afoul of the 2nd Amendment, California’s law is anything but reasonable. It bans the continued possession of magazines that were legally purchased and possessed by California gun owners and compels them to get rid of any magazines that can hold over ten rounds or else become a criminal.  It criminalizes the purchase and ownership of arms that are in common use for a variety of lawful purposes like self-defense, training, competition, and even the common defense against tyranny.  As U.S. Robert Benitez wrote in his opinion blocking the law from going into effect:

Today, self-protection is most important. In the future, the common defense may once again be most important. Constitutional rights stand through time holding fast through the ebb and flow of current controversy. Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights as bad policy. Bad political ideas cannot be stopped by criminalizing bad political speech. Crime waves cannot be broken with warrantless searches and unreasonable seizures. 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. Yet, this is the effect of California’s large-capacity magazine law.

Unfortunately, we’ve now seen that the response from Attorneys General from coast to coast is, in essence, “yes, we can turn millions of responsible, law abiding people trying to protect themselves into criminals. In fact, not only can we, but it’s reasonable for us to do so.”

Virginia’s AG Mark Herring, for example, says Virginia has the right to enact a similar ban in the name of public safety.

“Virginia and other states have the right, and I believe the responsibility, to enact commonsense, broadly supported gun safety laws that will save lives and reduce gun violence. I’m going to keep pushing for stronger gun safety laws in Virginia like universal background checks and a ban on high capacity magazines, and I’m going to fight in court to make sure we have the right to make those decisions for ourselves.”

Not since the bad old days of Massive Resistance to de-segregation in the state of Virginia has one of its AG’s come out so forcefully in favor of states rights over individual rights. Herring is wrong to say that magazine bans like California’s will “save lives and reduce gun violence”.  In fact, Eric Dietz of Purdue University’s Homeland Security Institute is currently working on research that suggests homeowners who possess 30 round magazines double their chances of surviving a multi-person home invasion. Banning these magazines may cost lives, not save them.

Herring and the other AG’s also talk about the “broad support” that the magazine ban in California enjoys. After all, it was approved via voter referendum. Doesn’t that alone lend credibility to the argument that it’s a reasonable and constitutional regulation?

No, says Judge Benitez.

The Attorney General says that is what voters want in hopes of preventing a rare, but horrible, mass shooting. The plaintiffs, who are also citizens and residents of California, say that while the goal of preventing mass shootings is laudable, banning the acquisition and possession of magazines holding more than 10 rounds is an unconstitutional experiment that poorly fits the goal. From a public policy perspective, the choices are difficult and complicated. People may cede liberty to their government in exchange for the promise of safety. Or government may gain compliance from its people by forcibly disarming all. In the United States, the Second Amendment takes the legislative experiment off the table. Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights. “An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity.”

Popularity doesn’t equal constitutionality, in other words. Nor does it equate to enforceability. As our friends at Twitchy pointed out, New York’s Attorney General Letitia James took to Twitter to defend California’s law with the claim that “These rapid fire bullet delivery systems endanger the safety of all Americans & have no place in our homes.”

That’s tough talk from James, but she didn’t mention the fact that New York has a similar magazine ban in place, and trying to enforce it has been a complete disaster.

Thanks to a ruling from a federal judge in Buffalo five years ago, authorities from police to prosecutors differ on how – or even whether – to enforce part of the law. A provision of the law aimed at limiting the number of rounds a person could have in a magazine was declared unconstitutional by two federal courts, most recently in October 2015.

What that means, though, has varying interpretations. And whether you get arrested on the charge could depend on which police agency stops you.

The State Police initially stopped enforcing the seven-round limit after the first court decision, but now say the law is in effect today as written and they are enforcing it.

In Erie County, including in Buffalo, people kept getting charged with a crime under that part of the law even though federal judges had struck it down.

There are currently 23 open cases in Erie County in which people have been charged under Penal Law 265.37, which makes it illegal – aside from a couple of exceptions – to possess a 10-round magazine that is loaded with more than seven rounds.

Those defendants will soon see those charges dropped, said Erie County District Attorney John J. Flynn.

And in the future, that charge will no longer be prosecuted in the county under his administration, according to Flynn.

And Buffalo police said they will stop arresting people for violating that provision of the law.

Sadly, I don’t think these anti-gun AG’s care any more about the law’s enforceability as they do about its constitutionality. They want the power to put laws like this on the books; the power to turn a legal gun owner into a criminal and the power to turn the 2nd Amendment right into a privilege.

The case of Duncan v. Becerra has another round of amicus briefings scheduled, and soon we’ll be hearing from those supporting the challenge to California’s magazine ban, including a number of Attorneys General who support the 2nd Amendment rights of California residents.