Magazine Capacity Bans in California: It Sure Is Hard to Defend Bad Law

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Surge Summary: In California courts, the battle to deny citizens their Second Amendment Right to bear arms continues … with some arguments that are ahistorical and contradictory.

by Rob Morse

The State’s lawyers submitted the bad news on California’s magazine ban. Both sides had to submit briefs to the federal district court last Friday. The California Attorney General didn’t have much to work with given that the firearm magazine capacity ban was so egregious. The state’s lawyers pulled out every spurious argument they could grab as they scrambled to justify their law.

  • They claimed that a magazine is not a firearm and therefore not protected by the second amendment. The US supreme court disagreed and ruled that contemporary semi-automatic handguns are covered by second amendment protections.
  • The state claimed that they are merely regulating firearms… when the supreme court said that the government can not ban a class of firearms in common use. If the magazine ban is such a trivial restriction, then why are law enforcement officers exempt?
  • In the next breath after claiming this is a trivial regulation, the state then says that standard capacity magazines are extraordinarily dangerous and did not exist in 1791. The fact remains that standard capacity firearms are in common use today. The state carefully ignored that there were magazine fed arms that held 20 rounds in 1779.
  • The California attorney general said they had to limit magazine capacity in order to reduce mass murder. We were supposed to look the other way and ignore that California has both severe magazine capacity restrictions AND that it leads the nation in mass murders. Despite it being unconstitutional, their gun ban failed to reduce violence as they claimed it would.

The rebuttal points to the state’s arguments and points out that the emperor is naked. They are standing there with their infringements exposed by transparent excuses.

The Bruen decision reiterated that the state can not ban a class of firearms in common use. The Bruen test says that regulations must point to similar laws from the 1790s. The state did not and could not cite a single example.

The state did point to the accepted racism of disarming slaves, Indians, and immigrants in order to excuse their ban of standard capacity magazines they passed last year. They pointed to the unjust practice banning an entire class of people from being armed to excuse their ban of a class of firearms today.

I was shocked. We reaffirmed civil rights for all citizens in the 1960s. Citing the concerns of slave owners from centuries ago isn’t a historic pattern of behavior I’d use to justify my political actions today. Maybe that is what lawyers have to do when there are no good arguments for their case.

On a technical note, denying several classes of people the right to bear arms is not the same as denying the use, ownership and the possession of an entire class of arms to all ordinary citizens. In this case, contemporary semi-automatic firearms which hold more than 10 rounds and are owned for lawful purposes.

Neither abuse is acceptable, and one does not justify the other.

I believe the case is now in the judge’s hands.


Click to access 2023-02-10-Plaintiffs-Supp-Brief-re-Historical-Laws.pdf


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Originally posted here.

Image: Adapted from: docmonstereyes from USA – IMG_9439, CC BY 2.0,

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