California AG Defends Magazine Ban In New Court Filing

AP Photo/Lynne Sladky

A three-judge panel in the Ninth Circuit Court of Appeals has already declared that California’s ban on the sale and possession of so-called large capacity magazines is an unconstitutional infringement on the Second Amendment rights of residents, but newly-installed Attorney General Rob Bonta is hoping that an en banc review by a larger pool of judges in the Ninth Circuit will reverse that earlier decision. Oral arguments are set to take place later this month, and in advance of that hearing Bonta has filed a new brief with the appellate court arguing that the magazine ban should remain in place.

Bonta, who was named Attorney General by Gov. Gavin Newsom after former AG Xavier Becerra was appointed by Joe Biden to become Secretary of Health and Human Services, claims that the original panel that overturned the state’s magazine ban was fundamentally incorrect in asserting that a ban on some of the most commonly-owned magazines in the country runs afoul of the Constitution.

In plaintiffs’ view, California’s ban on the “possession of such magazines” is categorically unconstitutional because “the state cannot banish what the Constitution protects.” But the core concern of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”  And California’s LCM restrictions do not “banish” that right; to the contrary, California generally allows law-abiding adults to possess and defend themselves and their homes with as many approved firearms, as much ammunition, and as many authorized magazines as they want.

Note the weasel words and circular logic used by Bonta. Yes, the state “allows” adults to keep arms in the home, but only those arms that are authorized and approved by the state itself. Bonta’s formulation turns the Second Amendment on its head. The state doesn’t “allow” anyone to keep a gun in their home because the People have the fundamental right to do so. It’s not the state’s place to allow or disallow the exercise of a constitutionally protected right, but Bonta’s position makes it clear that even now, more than a decade after the Heller decision, California still doesn’t view the Second Amendment as protecting a real right at all.

All California has done is to limit the number of rounds per magazine to no more than 10. That is (far) more than the 2.2 rounds that individuals typically need to defend themselves in a self-defense situation, and in those rare instances in which persons need additional rounds for self-defense, they may reload with a fresh magazine or continue firing using another firearm.

Well gosh, if gun owners only “need” 2.2 rounds per defensive gun use, then why not limit magazine size to five rounds? Better yet, why not apply the same magazine restrictions to police in California? After all, they’re currently exempt from the state’s magazine ban, but if individuals typically only need 2.2 rounds to protect themselves, there’s no reason why cops shouldn’t be subjected to the same gun control laws as civilians in the state.

Bonta’s argument is a weak one. It may very well be that in a typical self-defense situation, gun owners won’t fire more than ten rounds, but Bonta can’t assure gun owners that every self-defense situation they may find themselves in is going to be “typical.” Moreover, requiring gun owners to either use a secondary firearm or use a second magazine may not be possible in a self-defense situation in the home. The Attorney General’s own guidelines declare that gun owners should keep their firearms unloaded and locked away when they’re not in use, with ammunition stored separately. Having to return to your gun safe to grab another magazine or a second pistol is an unreasonable demand to make of people who are in the process of defending themselves and their loved ones from a home invader or multiple intruders.

A few years ago the Homeland Security Institute conducted some research on magazine size and self-defense, and researchers found a correlation between the size of a magazine and the odds of surviving a home invasion.

Researcher J. Eric Dietz with Purdue University’s Homeland Security Institute says that the latest research at his lab indicates that magazine bans may cost lives, not save them, when it comes to defending yourself. According to Dietz, computer modeling that tested survivability of a home invasion demonstrated that, the larger the magazine you the homeowner possessed, the greater the chance of you surviving the invasion of your home.

“With the way we had the modeling set up,” Deitz explained, “every single [additional] round added to the capacity. So, theoretically, even a hundred round magazine would have continued to add capacity. This is not really new. Anybody who’s got military or law enforcement time knows more guns in a gun fight on the friendly side are good and the outcome is usually better because of that. So I think this reinforces maybe our gut reaction to the magazine bans and the magazine capacity issue overall.”
Not only does Bonta’s brief ignore the Constitution and the plain language of the Supreme Court, which has repeatedly stated that arms that are in common use for lawful purposes are protected by the Second Amendment, it ignores the science as well.
Of course, this is the Ninth Circuit, so there’s a good chance that the en banc review will end up overturning the original decision that struck down the state’s magazine ban, regardless of how weak Bonta’s argument is. After all, this is the same appellate court that declared not long ago that the Second Amendment doesn’t actually protect the right to bear arms at all. The Supreme Court is going to be weighing in on the right to carry next term, and we can only hope that if California’s magazine ban eventually reaches the justices that they decide to take this case on as well.