California Magazine Ban Ruled Unconstitutional… Again

Federal District Judge Roger T. Benitez ruled Friday that California’s ban on magazines holding more than 10 rounds is unconstitutional. The ruling is unsurprising to anyone following the case, considering Benitez issued a similar ruling in 2017. The case went all the way up the appellate ladder, and back down again, only for Benitez to rule it unconstitutional one more time. And California is about to send it up through the system again. Let’s break that down and examine why this will hopefully be the last time this case makes the rounds.

California flag "unconstitutional"
California takes another loss on gun control. (

Six Years in the System

Duncan v. Bonta’s history bears a quick look. Benitz first ruled against California in 2017, and the state appealed to the 9th Circuit Court of Appeals. A three-judge panel upheld Benitez’s ruling, upon which time California appealed for an en banc hearing before the full court. The en banc panel reversed the original ruling, prompting the plaintiff to appeal to the US Supreme Court.

The Supreme Court agreed to hear the case, but the landmark Bruen Decision came down first. The Supreme Court then remanded the case back to the 9th Circuit to be heard in light of Bruen. The 9th Circuit, in turn, kicked the case back to Benitez with the same instructions. So, the case was heard again, this time accounting for Bruen. Unsurprisingly, Bruen strengthened the plaintiff’s case, leading to Benitez declaring the magazine ban unconstitutional for the second time. Got all that? Good, because it’s still not over. But first, let’s look at Benitez’s latest ruling.

Bruen and Tradition

Bruen established that gun laws, any gun laws, must conform to the “text, history, and traditions of the United States” as they were understood when the Second Amendment was ratified in 1791. Benítez wrote in his decision that “This case is about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes. Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.”

“Many gun owners,” Benitez wrote, want to have ready more than 10 rounds in their guns. As a result, in the realm of firearms, magazines that hold more than 10 rounds are possibly the most commonly owned thing in America. These larger magazines number over one hundred million. For handguns, the most popular sizes range up to 17 rounds; the most popular size for rifles is 30 rounds. Yet, regardless of the overwhelming popularity of larger magazines, California continues to prohibit any magazine capable of holding more than 10 rounds.”

Benitez continued that, “There is no American tradition of limiting ammunition capacity, and the 10-round limit has no historical pedigree, and it is arbitrary and capricious. It is extreme. Our federal government and most states impose no limits and, in the states where limits are imposed, there is no consensus.” He then lists the various limitations imposed by Delaware, Illinois, Vermont, Colorado, New York, and New Jersey, before stating that “The fact that there are so many different numerical limits demonstrates the arbitrary nature of magazine capacity limits.”

30 round AR-15 magazine on American flag
So-called “large capacity magazines” are perhaps the most commonly owned item in the firearms world. (Shutterstock)

Interest Balancing

Prior to Bruen, courts allowed that governments, and the courts themselves, could implement “interest balancing,” meaning that a perceived “public interest” could justify infringing on the people’s rights. This public interest was almost always cited as “public safety.” So, many gun laws that are clearly unconstitutional have been allowed to stand under that interest balancing doctrine and the argument that they advance public safety.

The Heller and Bruen Decisions put a stop to that with the text, history, and tradition requirement. Justice Clarence Thomas wrote that the two-step process of considering such laws’ constitutionality was “one step too many.” The Second Amendment is clear, thus the second step can only be taken to establish whether the law in question fits with the text, history, and traditions, as noted earlier. Interest balancing is not allowed.

Benitez wrote, “In a stealth return to the interest balancing test rejected by Heller and Bruen, the State ostensibly justifies its magazine limits by deeming the smaller magazines ‘well-suited’ for its citizens. Suitability, in turn, is based on concocted statistics about what a hypothetical average person needs to defend against an attacker or attackers in an average self-defense situation. Based on this hypothetical statistically average case scenario, the State permits its citizen to have a gun, but the State decides the number of rounds in the gun that it finds suitable.”

“In so doing,” Benitez continued, “the State denies a citizen the federal constitutional right to use common weapons of their own choosing for self-defense. There have been, and there will be, times where many more than 10 rounds are needed to stop attackers. Yet, under this statute, the State says, ‘too bad.’ It says, if you think you need more than 10 chances to defend yourself against criminal attackers, you must carry more magazines. Or carry more bullets to hand reload and fumble into your small magazine while the attackers take advantage of your pause. On the other hand, you can become a criminal, too. So, the previously law-abiding California citizen who buys and keeps at her bedside a nationally popular Glock 17 (with its standard 17-round magazine) becomes the criminal, because the State dictates that a gun with a 17-round magazine is not well-suited for home defense.”

Benitez goes on to cite statistics refuting California’s claim that there is “no evidence that anyone has ever been unable to defend his or her home and family due to the lack of a large-capacity magazine,” and that more than 10 rounds is ever needed. In fact, he cites case after case, and notes that more instances of citizens requiring more than 10 rounds have appeared since his initial ruling.

Second Amendment to the US Constitution
Judge Benitez makes it clear that magazines are protected by the Second Amendment. (Shutterstock/Text Added)

Eventual Disarmament

Judge Benitez’s footnotes contained a statement that particularly interested me. It’s a fairly long quote, but important. “As this Court explained in its prior decision,” Benitez wrote, “[a]rtificial limits will eventually lead to disarmament. It is an insidious plan to disarm the populace and it depends on for its success a subjective standard of ‘necessary’ lethality. It does not take the imagination of Jules Verne to predict that if all magazines over 10 rounds are somehow eliminated from California, the next mass shooting will be accomplished with guns holding only 10 rounds. To reduce gun violence, the state will close the newly christened 10-round ‘loophole’ and use it as a justification to outlaw magazines holding more than 7 rounds. The legislature will determine that no more than 7 rounds are ‘necessary.’ Then the next mass shooting will be accomplished with guns holding 7 rounds. To reduce the new gun violence, the state will close the 7-round ‘loophole’ and outlaw magazines holding more than 5 rounds determining that no more than 5 rounds are ‘suitable.’ And so it goes, until the only lawful firearm law-abiding responsible citizens will be permitted to possess is a single-shot handgun. Or perhaps, one gun, but no ammunition. Or ammunition issued only to persons deemed trustworthy.”

Sounds familiar, doesn’t it? That’s what Second Amendment advocates have been saying all along. Many of us, including me, believe that is indeed the goal of the politicians and activists behind such measures. But they don’t say that part out loud, wanting to appear “reasonable” to ill-informed people whose support they need.

Constitutional Arguments

Benitez goes deep into US history and the Constitution, including the 1775 Battles of Lexington and Concord, and requirements for the militia. The decision is online, and you can read it if you want. I found it interesting, but this is a summary, and repeating it is unnecessary.

Suffice it to say that the argument against the law being Constitutional is strong, and Benitez lays it out masterfully. It will be interesting to see California’s response in the appeal, because, yes, the state is appealing the decision to the 9th Circuit, where the whole process will be repeated. The difference, this time, is that Bruen has duly been considered and adds more to the case against the state. One way or the other, this will be the last trip up the judicial ladder. I’m no lawyer, but I am a historian with an interest in the Constitution, and I believe it doesn’t look good for California.

California Attorney General Rob Bonta
California Attorney General Rob Bonta is appealing the decision, but this hopefully the beginning of the end for the magazine ban. (

The defendant, California Attorney General Rob Bonta, as well as Governor Gavin Newsom, had plenty to say about the decision, and Judge Benitez himself, but it’s the same old thing and doesn’t bear repeating here.

Judge Benitez’s Conclusion

The decision’s conclusion makes a very strong statement regarding US history, the Second Amendment, and California’s response to crime. It’s worth printing here:

“One government solution to a few mad men with guns is a law that makes into criminals responsible, law-abiding people wanting larger magazines simply to protect themselves. The history and tradition of the Second Amendment clearly supports state laws against the use or misuse of firearms with unlawful intent, but not the disarmament of the law-abiding citizen. That kind of a solution is an infringement on the Constitutional right of citizens to keep and bear arms. The adoption of the Second Amendment was a freedom calculus decided long ago by our first citizens who cherished individual freedom with its risks more than the subservient security of a British ruler or the smothering safety of domestic lawmakers. The freedom they fought for was worth fighting for then, and that freedom is entitled to be preserved still.”

I think the salient point of that statement is that the Framers believed that liberty is worth the risk. It hearkens to Benjamin Franklin’s 1775 assertion that “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Some have claimed that Franklin’s comment is taken out of context and that it does not mean what we think it means. Those who say that are the usual suspects when it comes to governmental control versus liberty. I researched the original documents myself. The 1755 quote is a bit ambiguous, but the claim that it refers to taxes doesn’t hold water. The 1775 quote referenced above means exactly what it says, and what we think it says.

Saint Benitez
Judge Roger T. Benitez, AKA Saint Benitez. Peace be upon him. (

And even if you do believe that quote doesn’t mean what we think, I offer you Thomas Jefferson, who wrote that, “I prefer dangerous freedom over peaceful slavery.” Jefferson did not attend the Constitutional Convention because he was currently serving as the American Ambassador to France. But he regularly corresponded with men who were there, including James Madison, the so-called “Father of the Constitution,” and author of the Bill of Rights. In fact, Jefferson was among those who convinced Madison that a Bill of Rights was necessary in the first place.

So, it comes back to whether we believe the government can tell us how best to defend ourselves and our families. Judge Roger T. Benitez says that we should make those decisions ourselves, not leave them to politicians. I respectfully agree. We’ll keep you updated on this case’s progress, as it will eventually have national implications. Hopefully, it won’t take another six years.

William "Bucky" Lawson is a self-described "typical Appalachian-American gun enthusiast". He is a military historian specializing in World War II and has written a few things, as he says, "here and there". A featured contributor for Strategy & Tactics, he likes dogs, range time, and a good cigar - preferably with an Old Fashioned that has an extra orange slice.

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