I'm lifting this from the CalGuns website. There's a lot more in the link but as much as CA needs him I'd love to see this judge on the Supreme Court
With a big tip of the hat to poster CalGuns poster Redeyedrider
Some BRILLIANT Snippets From The Duncan Ruling - 10 Round Ban UNCONSTITUTIONAL - Calguns.net
From a public policy perspective, the choices are difficult and complicated. People may cede liberty to their government in exchange for the promise of safety. Or government may gain compliance from its people by forcibly disarming all. In the United States, the Second Amendment takes the legislative experiment off the table. Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights.
---------------------------------------
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.
------------------------------------------
All Californians, like all citizens of the United States, have a fundamental Constitutional right to keep and bear common and dangerous arms. The nation's Founders used arms for self-protection, for the common defense, for hunting food, and as a check against tyranny.
----------------------------------------
Today, self-protection is most important. In the future, the common defense may once again be most important. Constitutional rights stand through time holding fast through the ebb and flow of current controversy. Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights as bad policy. Bad political ideas cannot be stopped by criminalizing bad political speech. Crime waves cannot be broken with warrantless searches and unreasonable seizures. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California's large-capacity magazine law.
----------------------------------
Plaintiffs contend that there is no genuine dispute that the Second Amendment to the United States Constitution protects the individual right of every law-abiding citizen to acquire, possess, and keep common firearms and their common magazines holding more than 10 rounds – magazines which are typically possessed for lawful purposes. Plaintiffs also contend that the state of California has not carried its burden to demonstrate a reasonable fit between the flat ban on such magazines and its important interests in public safety. Plaintiffs contend that the state's magazine ban thus cannot survive constitutionally-required heightened scrutiny and they are entitled to declaratory and injunctive relief as a matter of law. Plaintiffs are correct.
------------------------------
Neither magazines, nor rounds of ammunition, nor triggers, nor barrels are specifically mentioned in the Second Amendment. Neither are they mentioned in Heller. But without a right to keep and bear triggers, or barrels, or ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless.
-----------------------------------
Under the simple test of Heller, California's § 32310 directly infringes Second Amendment rights. It directly infringes by broadly prohibiting common firearms and their common magazines holding more than 10 rounds, because they are not unusual and are commonly used by responsible, law-abiding citizens for lawful purposes such as self-defense. And "that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
--------------------------------
Magazines holding more than 10 rounds are used for self-defense by law-abiding citizens. And they are common. Lawful in at least 41 states and under federal law, these magazines number in the millions.
--------------------------------------
To the extent that magazines holding more than 10 rounds may be less common within California, it would likely be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. Saying that large capacity magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning. See Friedman v. City of Highland Park, Illinois, 784 F.3d 406, 409 (7th Cir. 2015) ("Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn't commonly used. A law's existence can't be the source of its own constitutional validity.")
--------------------------------------------
Over the last three decades, one of the most popular civilian rifles in America is the much maligned AR-15 style rifle. Manufactured with various characteristics by numerous companies, it is estimated that more than five million have been bought since the 1980s. These rifles are typically sold with 30-round magazines. These commonly owned guns with commonly-sized magazines are protected by the Second Amendment and Heller's simple test for responsible, law-abiding citizens to use for target practice, hunting, and defense.
-----------------------------------------
Certainly, a gun when abused is lethal. A gun holding more than 10 rounds is lethal to more people than a gun holding less than 10 rounds, but it is not constitutionally decisive. Nothing in the Second Amendment makes lethality a factor to consider because a gun's lethality, or dangerousness, is assumed. The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.
-------------------------------------------
California law presently permits the lethality of a gun with a 10-round magazine. In other words, a gun with an 11-round magazine or a 15-round magazine is apparently too lethal to be possessed by a law-abiding citizen. A gun with a 10-round magazine is not. Missing is a constitutionally-permissible standard for testing acceptable lethality. The Attorney General offers no objective standard. Heller sets out a commonality standard that can be applied to magazine hardware: is the size of the magazine "common"? If so, the size is constitutionally-protected. If the "too lethal" standard is followed to its logical conclusion, the government may dictate in the future that a magazine of eight rounds is too lethal. And after that, it may dictate that a gun with a magazine holding three rounds is too lethal since a person usually fires only 2.2 rounds in self-defense. This stepped-down approach may continue32 until the time comes when government declares that only guns holding a single round are sufficiently lacking in lethality that they are both "safe" to possess and powerful enough to provide a means of self-defense.
This is not baseless speculation or scare-mongering. One need only look at New Jersey and New York. In the 1990's, New Jersey instituted a prohibition on what it would label "large capacity ammunition magazines." These were defined as magazines able to hold more than 15 rounds. Slipping down the slope, last year, New Jersey lowered the capacity of permissible magazines from 15 to 10 rounds. See Firearms, 2018 N.J. Sess. Law Serv. Ch. 39 (ASSEMBLY No. 2761) (WEST). At least one bill had been offered that would have reduced the allowed capacity to only five rounds. (See New Jersey Senate Bill No. 798
-----------------------------------------
If you judge for yourself that you will need more than 10 rounds, however, the crime is yours. And, too bad if you complied with the law but needed 11 rounds to stop an attacker, or a group of attackers, or a mob. Now, you are dead. By living a law-abiding, responsible life, you have just become another "gun violence" statistic. And your statistic may be used to justify further restrictions on gun lethality for future law-abiding citizens.
----------------------------------------
California's law prohibiting acquisition and possession of magazines able to hold any more than 10 roundsplaces 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.
-----------------------------------------
The criminalization of a citizen's acquisition and possession of magazines able to hold more than 10 rounds hits directly at the core of the right of self-defense in the home. It is a complete ban on acquisition. It is a complete ban on possession. It is a ban applicable to all ordinary law-abiding responsible citizens. It is a ban on possession that applies inside a home and outside a home.
----------------------------------------
prohibition on selling firearm to marijuana card holder was not severe burden on core Second Amendment rights because the bar applied to "only the sale of firearms to Wilson —not her possessionof firearms"
---------------------------------------
§32310's ban on common magazines able to hold more than 10 rounds flunks the simple Hellertest. Because it flunks the Hellertest, there is no need to apply some lower level of scrutiny.
With a big tip of the hat to poster CalGuns poster Redeyedrider
Some BRILLIANT Snippets From The Duncan Ruling - 10 Round Ban UNCONSTITUTIONAL - Calguns.net
From a public policy perspective, the choices are difficult and complicated. People may cede liberty to their government in exchange for the promise of safety. Or government may gain compliance from its people by forcibly disarming all. In the United States, the Second Amendment takes the legislative experiment off the table. Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights.
---------------------------------------
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.
------------------------------------------
All Californians, like all citizens of the United States, have a fundamental Constitutional right to keep and bear common and dangerous arms. The nation's Founders used arms for self-protection, for the common defense, for hunting food, and as a check against tyranny.
----------------------------------------
Today, self-protection is most important. In the future, the common defense may once again be most important. Constitutional rights stand through time holding fast through the ebb and flow of current controversy. Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights as bad policy. Bad political ideas cannot be stopped by criminalizing bad political speech. Crime waves cannot be broken with warrantless searches and unreasonable seizures. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California's large-capacity magazine law.
----------------------------------
Plaintiffs contend that there is no genuine dispute that the Second Amendment to the United States Constitution protects the individual right of every law-abiding citizen to acquire, possess, and keep common firearms and their common magazines holding more than 10 rounds – magazines which are typically possessed for lawful purposes. Plaintiffs also contend that the state of California has not carried its burden to demonstrate a reasonable fit between the flat ban on such magazines and its important interests in public safety. Plaintiffs contend that the state's magazine ban thus cannot survive constitutionally-required heightened scrutiny and they are entitled to declaratory and injunctive relief as a matter of law. Plaintiffs are correct.
------------------------------
Neither magazines, nor rounds of ammunition, nor triggers, nor barrels are specifically mentioned in the Second Amendment. Neither are they mentioned in Heller. But without a right to keep and bear triggers, or barrels, or ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless.
-----------------------------------
Under the simple test of Heller, California's § 32310 directly infringes Second Amendment rights. It directly infringes by broadly prohibiting common firearms and their common magazines holding more than 10 rounds, because they are not unusual and are commonly used by responsible, law-abiding citizens for lawful purposes such as self-defense. And "that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
--------------------------------
Magazines holding more than 10 rounds are used for self-defense by law-abiding citizens. And they are common. Lawful in at least 41 states and under federal law, these magazines number in the millions.
--------------------------------------
To the extent that magazines holding more than 10 rounds may be less common within California, it would likely be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. Saying that large capacity magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning. See Friedman v. City of Highland Park, Illinois, 784 F.3d 406, 409 (7th Cir. 2015) ("Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn't commonly used. A law's existence can't be the source of its own constitutional validity.")
--------------------------------------------
Over the last three decades, one of the most popular civilian rifles in America is the much maligned AR-15 style rifle. Manufactured with various characteristics by numerous companies, it is estimated that more than five million have been bought since the 1980s. These rifles are typically sold with 30-round magazines. These commonly owned guns with commonly-sized magazines are protected by the Second Amendment and Heller's simple test for responsible, law-abiding citizens to use for target practice, hunting, and defense.
-----------------------------------------
Certainly, a gun when abused is lethal. A gun holding more than 10 rounds is lethal to more people than a gun holding less than 10 rounds, but it is not constitutionally decisive. Nothing in the Second Amendment makes lethality a factor to consider because a gun's lethality, or dangerousness, is assumed. The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.
-------------------------------------------
California law presently permits the lethality of a gun with a 10-round magazine. In other words, a gun with an 11-round magazine or a 15-round magazine is apparently too lethal to be possessed by a law-abiding citizen. A gun with a 10-round magazine is not. Missing is a constitutionally-permissible standard for testing acceptable lethality. The Attorney General offers no objective standard. Heller sets out a commonality standard that can be applied to magazine hardware: is the size of the magazine "common"? If so, the size is constitutionally-protected. If the "too lethal" standard is followed to its logical conclusion, the government may dictate in the future that a magazine of eight rounds is too lethal. And after that, it may dictate that a gun with a magazine holding three rounds is too lethal since a person usually fires only 2.2 rounds in self-defense. This stepped-down approach may continue32 until the time comes when government declares that only guns holding a single round are sufficiently lacking in lethality that they are both "safe" to possess and powerful enough to provide a means of self-defense.
This is not baseless speculation or scare-mongering. One need only look at New Jersey and New York. In the 1990's, New Jersey instituted a prohibition on what it would label "large capacity ammunition magazines." These were defined as magazines able to hold more than 15 rounds. Slipping down the slope, last year, New Jersey lowered the capacity of permissible magazines from 15 to 10 rounds. See Firearms, 2018 N.J. Sess. Law Serv. Ch. 39 (ASSEMBLY No. 2761) (WEST). At least one bill had been offered that would have reduced the allowed capacity to only five rounds. (See New Jersey Senate Bill No. 798
-----------------------------------------
If you judge for yourself that you will need more than 10 rounds, however, the crime is yours. And, too bad if you complied with the law but needed 11 rounds to stop an attacker, or a group of attackers, or a mob. Now, you are dead. By living a law-abiding, responsible life, you have just become another "gun violence" statistic. And your statistic may be used to justify further restrictions on gun lethality for future law-abiding citizens.
----------------------------------------
California's law prohibiting acquisition and possession of magazines able to hold any more than 10 roundsplaces 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.
-----------------------------------------
The criminalization of a citizen's acquisition and possession of magazines able to hold more than 10 rounds hits directly at the core of the right of self-defense in the home. It is a complete ban on acquisition. It is a complete ban on possession. It is a ban applicable to all ordinary law-abiding responsible citizens. It is a ban on possession that applies inside a home and outside a home.
----------------------------------------
prohibition on selling firearm to marijuana card holder was not severe burden on core Second Amendment rights because the bar applied to "only the sale of firearms to Wilson —not her possessionof firearms"
---------------------------------------
§32310's ban on common magazines able to hold more than 10 rounds flunks the simple Hellertest. Because it flunks the Hellertest, there is no need to apply some lower level of scrutiny.
