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By Larry Keane

Last Friday, U.S District Judge Roger Benitez answered the existential question of whether a half-loaded magazine was half full or half empty.

Judge Benitez said freedom comes in a fully-loaded standard capacity magazine.

The judge delivered Californians a decisive victory when he enjoined a state law that unconstitutionally banned firearm magazines from holding over 10 rounds of ammunition, but stayed his decision just days later while it is appealed. In his 86-page decision, Judge Benitez said that the law “places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny.”

Furthermore, Benitez’s decision concluded California’s law would criminalize a huge portion of the state’s lawful gun owners by limiting magazines to a completely arbitrary number that effectively outlaws many standard rifle and handgun magazines as currently sold.

Magazine Ban: A Misguided Approach

California’s magazine ban was initially enacted, in part, by local lawmakers as a political response to recent tragedies perpetrated by criminals. Yet Benitez saw this explanation for what it is: the wrong approach. His decision states that just as “bad political ideas cannot be stopped by criminalizing bad political speech … neither can the government response to a few mad men with guns be a law that turns millions of responsible law-abiding people trying to protect themselves into criminals.”

American Right of Self Defense

The right of American citizens to protect themselves, their families, and their homes is a crucial element in Benitez’s decision. He cited several examples of home defense in California, two of which involved a woman who fired on an intruder but ran out of bullets. In a life-and-death situation, the government has absolutely no right to regulate how much ammunition it takes to defend one’s self or one’s family.

Ironically, however, California’s magazine law would have done nothing to prevent armed home invasion or the vast majority of other crimes committed with firearms. According to a National Institute of Justice study, there are “relatively few attacks that involve more than 10 shots fired” and that the average assailant in violent firearm crimes fires less than four shots. Moreover, another study revealed that modern sporting rifles, which are undoubtedly the primary target of California’s magazine limitation law, were “never used in more than a modest fraction of all gun murders.”

Knowing this data, Judge Benitez is right to see the magazine ban as a misguided policy that only hurts law-abiding gun owners and would do nothing to further prevent the vast majority of crimes involving a firearm.

What’s Next?

Predictably, Judge Benitez’s decision is not the final word on magazine bans at either the state or federal level. California’s Attorney General Xavier Becerra announced Tuesday he a filed motion to stay the court’s injunction. Judge Benitez issued a stay while the case is appealed to the U.S. Court of Appeals for the Ninth Circuit. The stay prohibits confiscation and dispossession of any privately-owned magazines, even if they were purchased in the narrow five-day window during which there was no restriction.

Sadly, it also appears that some federal lawmakers are equally blind to the what Judge Benitez read in the Supreme Court’s landmark Heller ruling. Last February, Congressional Democrats introduced a bill to ban any magazine carrying over 10 rounds of ammunition that is farcically titled the “Keep Americans Safe Act.” It is clear that at both the federal and state level, magazine bans will not stop violent criminals. They will only disarm legal gun owners who want to protect themselves and their families.

For the moment, a 10-round magazine is less than half empty.

 

Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel at National Shooting Sports Foundation

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50 COMMENTS

      • and if the out of state gun store finds out you’r e from CA, they won’t sell you diddly.

        • U-Haul is your friend, Draven. As God told Abraham when leaving Sodom & Gomorrah, don’t look back – just go.

        • Definitely have bought multiple standard capacity mags in TX, WA, AZ and nobody even asks for ID. Unfortunately I lost all of them in an unfortunate boating accident. 🙁

        • I’m not from CA but I am in an area with plenty of anti-gun states and in the freer ones I haven’t ever had someone try and ID me when I’m buying accessories or ammo there (except Wal Mart for ammo, but fuck them).

        • Turns out that many out of CA sellers opened up to us once their lawyers got a look at the Benitez opinion.

          But it’s after 5 PM – the window has closed for ordering/buying.

  2. As the Fascist Taliban of this nation do not believe in the Constitution,would it make more sense to rather than ban Freedom and Liberty of the vast numbers of citizens,ban the Fascist Taliban of the Left and be done with it.

    • Why, yes, that is exactly what makes sense to the fascists… That is, after all, what they really want.

      This isn’t about guns or magazines or any other thing — but control.

      If they can’t curtail your freedom, they have no control.

      • ‘Power’ is an ‘end’ unto itself no matter how big or small. The power to tell you which condiment your kid can have with lunch. When to replace your windshield wiper blades. Which tree you’re allowed to plant on “your” property. Reward you for ‘good’ behavior – punish you for ‘bad’ behavior.

        People love power, and will never get enough of it.

        • In their own heads maybe. Everyone else smiles and nods but does so with their fingers crossed and then goes off and does whatever they want. Hence the term “Mum’s the word”.

          People are going to find this little gem from the CIA starts to happen more and more and the only questions will be “Is it sabotage or incompetence? Is it Live or is it Memorex?”

          https://www.cia.gov/news-information/featured-story-archive/2012-featured-story-archive/CleanedUOSSSimpleSabotage_sm.pdf

        • re the document: Interesting to browse through quickly, but I’m not sure I’m happy to have my url on record as having downloaded it 🙁

        • @Phil Wilson — Meh. I don’t worry about that anymore. In fact, I figure that if you’re not already on half-a-dozen watch lists already, you’re doing something seriously wrong. 😉

          • either that or you’re a liberal in which case why on earth would you be here 🙂
            Liberals dont like true liberty. they prefer charades

  3. “In a life-and-death situation, the government has absolutely no right to regulate righteous authority to define and thus LIMIT how much ammunition it takes to defend one’s self or one’s family.”

    There, fixed that for the author.

  4. He partially stayed his ruling to protect us from the 9th circuit. Here is an excerpt from his bigly, beautiful ruling:
    “Few would say that a 100 or 50-round rifle magazine in the hands of a murderer is a good idea. Yet, the “solution” for preventing a mass shooting exacts a high toll on the everyday freedom of ordinary law-abiding citizens. Many individual robberies, rapes, and shootings are not prevented by the State. Unless a law-abiding individual has a firearm for his or her own defense, the police typically arrive after it is too late. With rigor mortis setting in, they mark and bag the evidence, interview bystanders, and draw a chalk outline on the ground. But the victim, nevertheless, is dead, or raped, or robbed, or traumatized.”

  5. All this is a big part of why i think the anti Federalists had it right. The initial list of amendments for the bill of rights that they had drawn up of restrictions on govt numbered close to 180 and covered a lot of things that are going on today that restrict our natural rights.
    The heaviest and most onerous restrictions MUST always be placed on government with very few other than the most basic laws on the people and with extreme penalties on govt officials that seek to subvert those restrictions in any way. If this is not done government always seeks to amass greater and greater power and take control of more and more land that would otherwise be available to the use of the people.
    I would also go as far as to make national service (at a state level) of some sort mandatory for all be it fire service, ambulance or militia and keep the federal government out of all of these unless for example there is say a bushfire that crosses state lines and they are just there to help co-ordinate the efforts between the 2 states. even someone physically disabled can do something even if it is just an admin role

      • But that’s slavery! Or not…

        Depending on how it’s implemented, it could look a lot like “a well-regulated militia, being necessary to the security of a free State.” That’s something I could get behind.

        • yep it would be under the model of well regulated militia. If it were not that most jobs i have had in recent times have just had me totally drained at the end of the day i would be a volunteer for both SES (state emergency service) and the bushfire brigades. I grew up as a volunteer fire fighter being on the land and my father was the local captain after the previous guy had to hand over the reigns due to ill health so i learnt bushfire fighting from a young age. Even as young as 10 i was out helping locally with minor fires and controlled burns to cut the risk of bushfires.
          Are you really a “citizen” of a nation if you refuse to give back to your community in times of need, or are you simply a leach?

      • “Neither slavery nor INVOLUNTARY SERVITUDE except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

        So, what exactly does this mean, according to your world view? I’m actually curious.

        • In a nation where nothing can be required of a citizen as payment for that citizens rights, privileges, benefits for living in said nation how long will said nation last? Absolute freedom of the individual likely has not existed since the cave man days. Once people got together to build villages, towns, cities and states that level of freedom vanished.

          The .gov has a duty to us and we have a duty to the nation. National service? That can mean a lot of things. Maybe with an opt out by paying increased taxes.

          • also Absolute freedom also requires some responsibilities not just rights. the responsibilities go with those rights and one of those IS helping defend your community in time of need. If you are one who shirks those responsibilities you are a leach not a citizen

        • JWM that is the other option i would give personally even though i view taxation (especially the excessive amount that it is in america and even more so in australia) as a form of slavery. As for military i would make it so that politicians who wish to send the troops off to war MUST go themselves regardless of age and MUST serve in the front line not somewhere in the rear. I would also make it so that all family members of said politician of serving age must also serve in the front line. no excuses even if they were part of the militia and ranked as a general, front line duties if their parent called upon the nation to go overseas to fight.
          Doing this is the only way to discourage politicians from sending the troops into wars that there is grave doubt about whether we should even be there in the first place as at present there is NO RISK to them or their family. Even in Vietnam where there was the draft politicians managed to wrangle exemptions for their sons when they were called. that is not how it should be

        • JWM –

          What I want to know, is what do those words mean? The 13th is every bit as much a part of our Constitution as the 2nd. So, do they mean what they say? If they don’t then why should the 2nd be respected at all? If they do, then what you mean by :

          “Maybe with an opt out by paying increased taxes.”

          That is prima facia forbidden by the plain text. Please explain your rational. How is it that one amendment is more important than another, can that even be? If so, that kind of sounds like a “living breathing” constitution.

        • Toni –

          Absolute freedom doesn’t require anything, that is what makes it absolute, definitionally.

          What I want to know is:

          What do the words of the 13th amendment mean? Do they mean what they say?

          • actually yes they do unless you want to live in the middle of nowhere with no one around to help you if someone comes-a-raidin. another responsibility that comes with liberty is to not harm anyone that has not made the first move and is threatening your safety, family, property otherwise you loose all rights right in that moment and what comes next is your death or incarceration. More likely the former in a SHTF situation.
            As for the 13th it does not outlaw all slavery though at first writing it did. They added one word to it a few years later being “involuntary” which means that if you sign a contract that puts you in debt for the rest of your life then you are a debt slave the rest of your life. It also allows for the social contract as a citizen of the USA which places you under their jurisdiction where if you step outside what they deem law (including paying taxes) then they come after you. If you dodge the draft you go to jail…. the list goes on and on. There is one document these days that you personally never sign but rather it is signed on your behalf before you are able to consent that they use extensively for this purpose. have a think about what that might be

        • “In a nation where nothing can be required of a citizen as payment for that citizens rights”

          Since it is self-evident that all men are endowed by their Creator with certain unalienable rights, government is their Creator because they OWE government something for those rights?

          What exactly do I owe government in exchange for my unalienable rights endowed upon me by my Creator? Who sets the rate? When did I agree to this? How could I opt out?

        • “In a nation where nothing can be required of a citizen as payment for that citizens rights, privileges, benefits for living in said nation how long will said nation last?”

          You are describing sovereigns and subjects. The subjects owe the sovereign for the fact that the subject exists.

    • Works great. Just need to mix in some brass to keep the chamber cleaned out since the steel doesn’t expand and pull the carbon out. I don’t shoot enough (unfortunately) to worry about extra wear and if the SHTF, I’m not going to give a damn what type of ammo I have, only that I have enough.

      • Get her hot enough and you’ll find out real fast that it doesn’t “work great” once that lacquer turns into glue and you can’t extract the old case without a mallet and a rod.

        There’s a reason many manufacturers will tell you that shooting lacquered ammo voids their warranty.

        • Lucky Gunner can say whatever he wants. Such a thing happened to me on a rifle with less than 300 rounds through it since it’s last cleaning and I’m completely anal about cleaning my guns.

          Cheap, lacquered ammo in a hot rifle that’s allowed to cool with a round in the chamber has a pretty good likelihood of locking up the rifle as the lacquer rehardens and glues the case in place. This locks up your whole BCG. It’s not a problem if you keep firing the rifle until it’s empty and then leave it that way. But you can get a lacquered case stuck this way and it’s a fucking PITA to get out. Way harder than getting a stuck 7.62×39 case out of an SKS that’s simply too fouled with carbon/rusty cases to extract. The latter requires a wooden dowel rod, the former, well I beat that dowel to nothing before I got that case out. A metal dowel was required for me.

          I don’t recommend this and I don’t think this is a myth. It’s certainly not something you’re going to fix with a field strip because you can’t take the rifle apart until you get that case out of the chamber

        • Duly noted. I guess it’s never been a concern of mine since I’d never leave a live round in the chamber after a session of target shooting.

        • Don’t ever let anyone borrow your rifle. That’s how I found out about this. It’s a PITA I wouldn’t want others to have to deal with.

          However, in a SHTF context… SHTF and comments on how much ammo suggest gunfights. After a gunfight are you going to clear your rifle instantly or wait a bit to make sure it’s safe to unload? Probably the latter, just in case there’s more BGs. In those minutes your rifle gets glued shut and is now a single shot affair you can’t fix on the spot. That sucks.

          On top of that, shooting the hot rifle probably leaves lacquer residue even if you do clear the chamber. I would suspect this because after I got that case out I cleaned out bits of plastic-like crap from the chamber. Stuff that would probably melt again if heated. Shooting it again, even with brass cases, would probably re-melt that stuff to goo meaning that a brass case would suddenly become a glued-in case if it was in the chamber when the chamber cooled again.

          The simple solution is to just not shoot cheap shit unless you have a dedicated rifle for that.

        • I think heating up the chamber to remelt the lacquer would be an easier way of extracting a glued in round.
          Strip off any plastic furniture, then leave a heat gun pointed directly at the chamber area for a few minutes.
          Might just work better than beating a metal rod down your bore *cringe*

  9. Is the glass of water/soda/whiskey half full or half empty? It’s really a glass that is twice as big as it needs to be. Relative to gun magazines, if it ain’t full then fill’ it up!

  10. Seems like the California AG has taken unsurprising action. Question now seems the following. Considering that Interstate Commerce is here involved, whose dictates are superior, those of a state official or the rulings of a federal judge?

    • The federal court judgment is binding on the state officials–when the filing becomes final. Which may be a few more years as it meanders through the Ninth, and perhaps gets stayed pending the NYC transport case currently pending before SCOTUS. [The assumption is that the Supreme Court will settle the issue as to the proper standard of review on 2A cases and how that standard is to be implemented.]

      • ” [The assumption is that the Supreme Court will settle the issue as to the proper standard of review on 2A cases and how that standard is to be implemented.]”

        I’m no lawyer, but it seems to me that is the best way to do the most damage to the anti-gun side in the shortest amount of time.

        But I’m concerned about what form it may take. Scalia in ‘Heller’ noted the right is not unlimited, and the Leftists are going to take any inch and get miles out of it.

        What do you think they have in mind? Some form of modified ‘strict scrutiny’? And how can we keep them from abusing the fuck out of it, like they do now?

  11. A lot of people in California are discovering these standard capacity magazines ARE dangerous. You can hurt your fingers loading so many rounds at one time. A loaded 30 round magazine is a lot heavier than a 10 round magazine. You can go through way more ammo during a range visit. Try to CCW a G19 with a 31 round magazine and you’ll throw you back out.

    Not to mention how much money you can spend buying magazines for everything you currently have . . . and might have in the future. Dangerous!

    (obvious sarcasm)

    • “A lot of people in California are discovering these standard capacity magazines ARE dangerous. You can hurt your fingers loading so many rounds at one time”

      That’s what your kids are there for. Loading magazines helps build fine motor skills, and strengthens tiny fingers… 😉

      And if they tire easily, just get the wife to crank out a few more. It’s for the children…

  12. “I need the 30 round mags for my .50 Beowulf / .458 SOCOM – If I use them in my 5.56, I’ll only load 10 rounds, I swear!”

    (It’s called constructive intent and the ATF can use it for SBR or suppressors….)

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