Gavin Newsom Proposition 63 Magazine Ban
courtesy and AFP/Getty
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In late June, a US District Court judge issued a preliminary injunction blocking a ban on possession of magazines holding more than ten rounds of ammunition in California. The ban was passed as part of Proposition 63 which also instituted background checks for ammunition purchases. The “high capacity” magazine ban would have outlawed untold millions of mags already legally owned by California gun owners.

As Judge Robert Benitez wrote at the time, implementing the law would have resulted in “hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property.”

Today, a three-judge panel of the Ninth Circuit upheld that injunction in a 2 to 1 decision. Here’s the California Rifle and Pistol Association’s announcement of the ruling.

Ninth Circuit Upholds Preliminary Injunction Against 
Newsom’s Standard Capacity Magazine Ban

In another blow to Lt. Governor Gavin Newsom’s anti-gun agenda, a three-judge panel of the Ninth Circuit issued a ruling in the case of Duncan v. Becerra on Tuesday, upholding a lower court’s decision to suspend enforcement of Proposition 63’s restriction on the possession of magazines capable of holding more than 10 rounds.

Following the enactment of Proposition 63, CRPA attorneys sought an injunction against the magazine possession ban, arguing that the law violated the Second Amendment, as well as the due process and takings clauses of the United States Constitution. Federal District Court Judge Roger T. Benitez agreed, issuing a preliminary injunction just days before the law was set to take effect. California quickly appealed the decision.

On appeal, the Ninth Circuit held that Judge Benitez did not abuse his discretion, holding that he applied the correct legal standards and made reasonable inferences based on the record. But one judge on the panel disagreed. Responding to the dissent, the majority noted that it was not within the panel’s authority to re-weigh the evidence of the case, nor could it substitute its discretion for that of the district court. What’s more, referencing the Ninth Circuit’s 2014 ruling in Fyock v. Sunnyvale, which affirmed the denial of an injunction against a local magazine ban, the majority held that simply because a judge disagrees with another district court does not necessarily mean the district court abused its discretion on the matter.

Meanwhile, in the trial court, a motion for summary judgment is pending and a ruling on the merits of the case is expected soon. Regardless of the outcome, the case will most certainly be appealed again to the Ninth Circuit. But by that time, the Supreme Court will likely have a new Justice who respects the right to keep and bear arms as protected by the Second Amendment.

To stay informed on the Duncan case, as well as other important Second Amendment issues affecting California gun owners, be sure to subscribe to NRA and CRPA email alerts. And be sure to visit the NRA-ILA California dedicated webpage at and the new CRPA webpage at

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    • While I agree with the sentiment, I don’t quite understand how it relates to the article.
      This is the Ninth Circus here, which owes no allegiance to the President (no matter who he is). They are one of (if not the) the most leftist circuit courts of appeal we have.

      I also note this was done by a three-member panel of the court. It will probably be appealed to the entire court (why not? The government has lots of taxpayer money), where the same outcome is certainly not guaranteed.

      • Because this case will likely go in California’s favor “on the merits,” and THAT decision will not get changed by the 9th Cir. So, the only real chance of the magazine laws getting overturned is by the Supreme Court, to which the Trump administration is going to have placed 2 member already, and there’s still time for a 3rd.

      • If the Governor loses, they will just request an en banc review and the decision will be overturned.

      • The reputation of the gay Activists loving Commie Cookie Monsters, in San Fran-sicko, CA, will and keep it from the SCOTUS. and Why you as, because after the Cake Decorator case who won a finale decision was CO violating the 1st Amendment right of Religious liberty on the simple bases of NO STATE and NO Federal Courts can MAKE NO LAW as CONGRESS Is; powerless to do so as Our Individual Alienable righ’s from God stands corrected by the God-fearing Men in The SCOTUS led by Gorsuch..

        Warning to the Godless left coast who worshipped the Clintons and Lord King Obama ( “Quoted by Actor Jamie Fox.”) you lost, especially with the current wack democrat jobs in the US Senate and Congress and the current State lawmakers will lose in 2018 and in 2020.

    • the risk, of course in going to SCOTUS is the outcome could have national repercussions..something they may not want to risk..

    • At this point it is premature to even ask the question, since there has yet to be a decision on the merits in the trial court. At this point, all that has happened, for our purposes, is that the trial court issued a temporary injunction preventing the law from going into effect pending a full hearing on the merits. the AG appealed. The review at this stage is very narrow: did the trial court abuse its discretion in issuing the TRO? The abuse of discretion standard is whether any reasonable judge could come to the same conclusion, and for the Appellant, it is nearly impossible to prove that discretion was abused. Although it is unlikely, the trial court could still rule that the law is a valid exercise of the police power.

      This is where it gets sticky. The rules on appeal do not permit the court of appeals to rewweigh the evidence, and all disputes in the evidence must be resolved in favor of the judgment if it is a decision after trail. However, right now, Plaintiff has a motion for summary judgment pending, and shold it win, the standard on review is distinctly different, and could easily result in a reversal. But we have a while to wait and see what happens next before any speculations can be entertained.

      • +1; correct legal analysis.

        I strongly doubt that Cali will ask for en banc review. As correctly stated above, the standard of review for grants / denials of a preliminary injunction are very slanted in favor of the district court (which, for example, is why Cody’s appeal of the denial of a preliminary injunction in the Defense Distributed case was a long shot [albeit one he nearly pulled off, and ultimately won when the government caved]).

        Were the 9th Circuit to pull a Peruta and reverse this en banc, it would present several very fat targets for Supreme Court reversal. The simplest one, which might even be decided summarily (and perhaps unanimously), is that CTA9 improperly reweighed the evidence. The 2d and 5th amendment challenges would also be attractive (and even if the Court decided the appeal on the narrow procedural issue, I suspect you’d see Thomas, Gorsuch, or Kavanaugh write a concurrence that essentially would be a roadmap on the 2A issue).

        Especially given the likely elevation of Kavanaugh to Los Supremos by the time this would be eligible for cert, methinks Cali isn’t going to risk it. They can live with the preliminary injunction, but risking getting a major 2A decision out of SCT that rolls back their whole system of gun control would be all kinds of stupid.

        • Real fine, except for the fact that the entire reason CA has this mess going on is the direct result of some really amazing stupidity, why would we think they won’t continue?

    • correction: 9th cervix court. marching on in the 1970’s spirit of rosie and the supremes from cali-fagnia

  1. Well that’s really bizarre. Is this an attempt to keep it from going to SCOTUS? Magazine capacity is really the #1 on anti ban lists. It would be really huge if SCOTUS ruled they were protected.

    • It’s damage control, pure and simple. They can’t let it spread beyond the 9th if they can help it.

      Let our enemies do some of the heavy lifting for us with creating judicial precedent.

      This is what *winning* looks like…

    • What? I think background checks for ammunition purchase is more onerous. Not only tells them you possess but what calibers to look for, eh?

        • Prog speak: Bolt Action = Sniper Rifle “And only assassins need sniper rifles”

      • Since background checks on guns haven’t been ruled unconstitutional anywhere, overturning the background check on ammo will be difficult. Interstate purchase of ammo might have a chance.

        • interstate purchase of ammo (internet, mail) is still perfectly legal. you just need to ship it to a properly licensed person (who also charges you) before you can get it transferred to yourself… just like a firearm.
          as far as i know, there is nothing that the state gets that states *what* ammo is being transferred.
          most places are around $0.01 per round, or by weight.. a few are free if you pick it up Right Fricken Now! when it arrives
          There are a couple of competing things going on about the background check.. there is the 4 year card vs the pos fee.. dunno which will go, but I am sure neither will be ready when the implementation time rolls around next year.

          I will just buy in reno. have to actually smuggle it back into the state though.

  2. Yup… this is them scrambling not to give the SCotUS an easy pro-gun case to review… Magazine bans are a simple, limited scope, case that would go down in flames at that level with an originalist court. Watch all the anti-gun states desperately try to keep cases out of appellate courts for the next decade or so just so that they don’t have their entire scheme unravel.

    • “Watch all the anti-gun states desperately try to keep cases out of appellate courts for the next decade or so just so that they don’t have their entire scheme unravel.”

      Than it’s time for our side to up our game and flood the courts with challenges to crap like the Hughes amendment and rifle bans.

      But it’s sure fun watching the Leftists as they slowly realize their goals disappearing before their eyes.

      Like this one, George Soros seeing the writing on the wall :

      “George Soros Bet Big on Liberal Democracy. Now He Fears He Is Losing.

      His enemies paint him as all-powerful, but the billionaire philanthropist believes that his political legacy has never been in greater jeopardy.”

      We’re not there yet, but the winds of good fortune for gun right are on our backs for a change..

  3. Anti-2A jackalopes are playing the long con game, running the clock until the US becomes a vassal state of Mexico.

    California is already there. The Democratic Party is already there. San Francisco is registering illegals to vote. Viva la Raza.

    • That has some interesting implications. Voter registrations are public records, and they are often online. I wonder if ICE could scrape the clerk’s website and get a list of potential deportees. There can’t be too many illegal residents of SF. With the high cost of living there, it’s difficult for skilled workers and professionals to afford housing, so unskilled workers will mostly be commuting.

  4. Did the ninth Circuit courts switch with with there bizarro world counterparts for a day? Doesn’t matter. In the end the ban will be upheld. It will then go to the Supreme Court who will refuse to hear it even if (when) Kavanagh is confirmed.

    • The decision is a function of the standard of review for a temporary restraining order. The Ninth will get its shot at the guts of the case AFTER there is a judgment on the merits. We haven’t gotten there yet. And besides, not all of the Ninth Circuit judges are liberals.

  5. En Banc will be requested
    En Banc will accept
    En Banc will overturn ruling without referencing it
    SCOTUS will refuse to hear the appeal

    I’d love to be wrong…but I won’t be. Gun laws are a house of cards at this point, it’s hard to dismantle some without taking them all (see: Heller which was supposed to be a narrow scope). Courts hate having a broad impact that makes for lots of work for themselves

    • You’re exactly right. even if the court case involved blanket door to door warrantless gun confiscation with all who oppose have there houses raided by force with the execution without trial of all homeowners who say no the exact same thing would happen.

    • Unlikely at this stage. All that the trial court did was issue an temporary injunction preventing the law from going into effect UNTIL a hearing on the merits. Once the case goes to trial, then all bets are off as to what the trial court’s ultimate decision will be. AFTER the trial court decides the case on its merits the fun will begin, because the loser (especially if it is the State) will undoubtedly appeal.

      • Yup. Given the district court’s analysis, I’ll predict that its judgment will ultimately go to the plaintiff, based on an application of strict scrutiny. State will appeal and CTA9 will reverse, holding that intermediate scrutiny applies. That will then frame a very easy case for the Supreme Court to take and hold that strict scrutiny applies in 2A challenges to gun control laws. (See Kavanaugh’s dissent in Heller III for the likely analysis.)

        Once we have a clear pronouncement from the Supremes that strict scrutiny applies, it’s game on. This is the same legal standard that, for instance, controls in cases challenging laws that impose prior restraint on speech, restrict religious practices, restrict interstate migration, etc., and is damn near impossible to meet unless the evidence is compelling and overwhelming.

        Under strict scrutiny, I could see registration/taxation of MG’s and destructive devices under the ’34 Act being upheld, but not SBS, SBR, or suppressors. (Invalidating the Hughes Amendment would be a heavy lift (and thus should not be challenged immediately) but eventually not inconceivable.) Local AR bans, mag limits, and “may issue” CHL regimes would be very likely to go down, as they are never based on much more than “we don’t like them” or “people are afraid of guns.”

        For this reason, it would not shock me that if the district court holds that the mag ban is unconstitutional but does so very narrowly (e.g., judicially grandfathers in possession of existing stuff), Cali may not even appeal and risk a broader holding, and would go back and try a sneakier way to effectively ban std. cap mags

        • I think most of our suppositions may come into a different focus, depending on how many GOP senators we have in Jan. 2019. If we still have 51, heads may explode when the left figures out how likely it is that RBG will be replaced by a strict constructionist.

        • “Under strict scrutiny, I could see registration/taxation of MG’s and destructive devices under the ’34 Act being upheld, but not SBS, SBR, or suppressors.”

          What would stop a future administration from moving semi-auto firearms onto the ’34 NFA?

          With the excuse given that they are “unusually dangerous firearms” like the initial weapons covered by the NFA (SBS SBR MG, etc.)?

          That would give them the cover that they are “respecting the 2A” by not banning them, but simply taxing and registering them…

        • restrictions on silencers, SBR’s and SBS’s being lifted were all close to happening before TSHTF…

    • I’d imagine that if the actual decision was favorable, it would be narrow and on the grounds of not providing a grandfather clause or compensation to current owners, but they wouldn’t address bans of future manufacture/sales or 2A.

  6. Anyone else think Gavin Newsom looks like a cross between Bradley Cooper and Patrick Bateman (from American Psycho)?

    • Better stay awake. When that slime ball Newsom is crowned next overlord, he’ll make Moonbeam look like a girl scout selling cookies. He is DAMN DANGEROUS!

    • Potentially, yes.

      What we have to wait for is after the new associate justice is seated and they grant a petition of cert. for a 2A case.

      If that happens, chances are good we will prevail. And with Thomas on the court, I doubt they will make the same mistake they did with Heller and not incorporate the decision on the country as a whole.

      What I would like to know is, let’s say its a magazine capacity ban that is being challenged – Could the court go beyond the scope of the initial lawsuit to cover addional things?

      Example, could they say along with a magazine capacity limit, could they also say semi-auto rifles are also covered under the 2A?

      • Doubtful. SCOTUS very rarely makes decisions outside of the scope of the legal case. If magazines go to SCOTUS and they vote pro gun, it will be strictly a pro gun magazine decision.

        If we want riles, concealed carry, ammunition, etc, we will have to deliver those specific court cases to them. Thankfully for us, we will have a lot of opportunities in the future. We just have to make sure Republicans stay in power until 2024 so that we can get a 7-2 court. Then we are most likely set for decades with an originalists Court.

        • Unless the Dems pack the court when they next get the chance. Like they’ve threatened to do. Like they’ve done in the past. Reversing a 7-2 would take some serious packing, to be sure. Blatant. But that doesn’t tend to stop them.

  7. While magazine capacity laws are completely arbitrary and obviously unconstitutional, making you “dispossess oneself of lawfully acquired property” is settled law.
    Even if it affects millions of Americans.
    When Cocaine was declared a controlled substance every home in the country had some in the medicine chest.
    The government did not buy back all that legally acquired cocaine.
    Same thing with marijuana and even lawn darts.
    When these were declared as contraband, you had to destroy your legal property after it became illegal to possess.
    There was no compensation.
    The takings clause does not apply as they are not “taking” your property and using it or giving it to someone else.
    They are forcing you to destroy it.
    There is a legal difference and this has been adjudicated several times.
    When they take your house and build a bridge, they have to compensate you.
    When they declare your legal property illegal to possess, you must destroy it.
    It is unfair, but constitutional

    • The Consumer Product Safety Commission banned the sale of steel lawn darts in the 80s, but the possession of same is still legal.

      You can’t buy them, but you can still own them.

      BTW, SCOTUS has not been asked to make a ruling on the legality of Lawn Darts.

  8. It wasn’t California that appealed against the injunction, but the AG. The people of the state either were against the ban, don’t care, or not aware that this is even happening.

    • Yup, kalifornia is awash in low informed sheeple. Mostly living on the coast. Sadly, they are in control.

  9. Outstanding! I almost came to tears reading this. I can only hope it will hold. But knowing what a circus the 9th IS, I wont hold my breath.

  10. If Gavin Newsom happens to be reading this you can kiss my ass and go straight to hell where you may rot.

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