by Derek Fleming
SAN DIEGO (CN) — Gun advocates Thursday won a temporary reprieve from a section of California gun controls, when a federal judge issued a temporary injunction against the section of Proposition 63 that prohibits possession of magazines holding more than 10 rounds of ammunition.
U.S. District Judge Roger Benitez enjoined the requirement that gun owners surrender lawfully purchased property or become subject to criminal prosecution. The ban was to take begin on July 1.
“Plaintiffs’ entitlement to enjoy Second Amendment rights and just compensation are not eliminated simply because they possess ‘unpopular’ magazines holding more than 10 rounds,” Benitez wrote.
Other courts have ruled that measures designed to eliminate an entire class of “arms that is overwhelmingly chosen by American society” and “typically possessed by law-abiding citizens for lawful purposes” are unconstitutional, lead plaintiff Virginia Duncan said in the original complaint against California Attorney General Xavier Becerra.
The California Rifle and Pistol Association joined as a plaintiff.
In an amicus brief supporting the state, the Law Center to Prevent Gun Violence called the voter-approved law a “smart” restriction, as “large capacity magazines are highly lethal accessories, not protected arms, but even if they are arms, the Second Amendment permits prohibiting them because there is overwhelming evidence that large capacity magazines are dangerous and unusual and historically restricted, and best suited for military combat rather than civilian self-defense.”
Magazines holding more than 10 rounds have been banned from sale in California since 2000, but people who acquired them legally before the ban were allowed to keep them. Under Proposition 63 in its entirety, owners must destroy the large magazines, surrender them to police, or sell them to a licensed dealer.
No government buyback was included in the law. The plaintiffs said some gun owners could lose thousands of dollars worth of magazines.
Hundreds or thousands to millions of large magazines may be in private possession in California, according to estimates. Thousands of pistols and rifles have been sold that accept a magazine with more than 10 rounds capacity, and in some cases, no magazine is available to replace the factory-made ones.
The plaintiffs claim that Proposition 63 violates the Second, Fifth and 14th Amendments, specifically the takings and due process clauses.
Benitez ordered Becerra to refrain “from implementing or enforcing California Penal Code sections 32310 (c) & (d), as enacted by Proposition 63, or from otherwise requiring persons to dispossess themselves of magazines able to hold more than 10 rounds lawfully acquired and possessed,” and notify all law-enforcement officers of it.