Californians can now buy “high capacity” and standard capacity magazines without risking felony actions. Judge Roger T. Benitez has ruled California Penal Code subsection 32310 as Unconstitutional. Gun control advocates are beside themselves. Judge Benitez makes a strong argument for the Second Amendment in an 86-page court document including 80+ pages of opinion lodged into the Southern Districts system on March 29th 2018. BUY YOUR MAGS NOW WHILE YOU CAN UNCHALLENGED.
Californians Can Buy High Capacity Gun Magazines Now – Legally
NOTE: THIS ARTICLE MAY BE TIME SENSITIVE, IT MAY NOT ACCURATELY REFLECT IMPORTANT ASPECTS OF THE MATERIAL COVERED, DEPENDING ON WHEN YOU VIEW IT. WE MAKE EVERY EFFORT TO PUBLISH ONLY ACCURATE INFORMATION. THIS ARTICLE IS ACCURATE AS OF APRIL 2, 2018.
Federal Judge Rules California’s Magazine Ban Unconstitutional – NOT AN APRIL FOOLS PRANK.
ACCURATE AS OF APRIL 2ND 2019: Not an April Fools joke: Californians can now buy standard capacity magazines, otherwise known in most media outlets as “high capacity magazines”. But it may not last long, so BUY YOUR HIGH CAPACITY MAGAZINES ASAP IN CALIFORNIA!
A Cuban born U.S. Federal judge in Southern district of California has handed the biggest gun rights victory to Californians in years. Judge Roger T. Benitez declared the California Penal Code Subsection 32310 Unconstitutional as a result of his findings in the important Duncan vs. Becerra case. His findings and rulings are detailed in an 86-page court document with more than 80 pages of opinion that was entered into the court on March 29th 2018.
In what reads like a fairy tale for gun rights supporters, Benitez opens with “Individual Liberty and freedom are not outmoded concepts.” followed by a Robert Kennedy quote, and ends with the statement “This decision is a freedom calculus decided long ago by Colonists who cherished individual freedom more than the subservient security of a British ruler. The freedom they fought for was not free of cost then, and it is not free now.” He detailed three separate cases of assaults on law abiding citizens that highlighted his impetus for the ruling. He is seemingly, staunchly a second amendment advocate.
Benitez also cited the concept of the so-called “Heller Hardware Rule”. He highlighted the ridiculous Prop 63 that passed in 2016 as well, further stating:
“Constitutional rights stand through time holding fast through the ebb and flow of current controversy…” “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.”
Judge Benitez also noted that mass shootings were “…exceedingly rare…”; and the numbers no doubt bear that synopsis out accurately, despite the difficulty in digesting increased occurrences of mass shootings in the world. As a side note: the numbers of total deaths caused by semi-automatic rifles is a miniscule fraction of total deaths in any society. His notations about mass shootings are not falling on deaf ears within the firearms community.
Implications of this ruling:
- Californians will no doubt be under pressure by whatever new laws are pushed swiftly through the state legislature in the very near future. So, buy your high capacity magazines now.
- Grandfathering protections has a rich history for most gun law implementations. It may not be the case going forward. This is a brazen stay of the anti-gun politician’s agenda. They will not be happy about it.
- This is not only about AR-15’s and this is not just about defensive uses, though these areas benefit proportionally. You will want to secure your normal capacity magazines for your Glocks and Smith & Wesson’s and HK’s and Springfield Armory pistols.
- Having magazine components on hand, purchased while they were legal is a very good protection against future difficulties in the state.
- Both sides are likely to attempt to take this challenge all the way to the U.S. Supreme Court.
- A 9th circuit court of appeals ruling overturning this Benitez decision could make criminals out of law-abiding citizens, and while it historically is not very likely, could make current purchases of the magazines subject to surrender upon reenactment of the legislation.
- That said, the 9th circuit will not be able to wholesale throw out the judge’s opinion like it has in the past, the opinion has strong precedence in Its DNA. It’s more likely that this appeal moves towards the SCOTUS than it simply gets kicked back immediately by the 9th circuit court. Notably, the Ninth circuit court upheld Benitez’s ruling to stay the law’s initial implementation to test for constitutionality already, leading to this decision.
Furthermore, the opinion rendered by Benitez is strongly rooted in practicality and has ties to timeless ideas presented in the Second amendment. It bodes well for the potential docket time it might see at the SCOTUS.
Without a hiccup, Gavin Newsom and Xavier Becerra both blasted the decision and noted their desire to push back.
A VERY IMPORTANT NOTE: there are some counties that enforce very strict laws about ammunition. California as a state has a very intrusive and strict policy on ammunition purchasing. If you buy online to get your high capacity magazines while this ruling exists unchallenged, make sure you understand the rules about ammunition purchases if you are bundling ammo and magazines. MOST HIGH CAPACITY MAGAZINE VENDORS have delisted their bundled packages to keep delays to a minimum and avoid difficulty for purchasers in California who are trying to get magazines while they can. Vendors like Amazon.com may not be adhering to this ruling in a practical way, because of the extreme logistics of doing so in a large platform. Historically these are not items that are sold on the Amazon Platform anyway.
So, what is the longevity we can except of this ruling?It’s anyone’s guess. No doubt California State Attorney General Xavier Becerra is chomping at the bit to get back into court and get this thing disputed. There will be no shortage of money in the budget to fight for more gun control in California. It’s likely to be challenged in the next month or so, again.
Penal Code – PEN
PART 6. CONTROL OF DEADLY WEAPONS [16000 – 34370] ( Part 6 added by Stats. 2010, Ch. 711, Sec. 6. )
TITLE 4. FIREARMS [23500 – 34370] ( Title 4 added by Stats. 2010, Ch. 711, Sec. 6. )
DIVISION 10. SPECIAL RULES RELATING TO PARTICULAR TYPES OF FIREARMS OR FIREARM EQUIPMENT [30210 – 33690] ( Division 10 added by Stats. 2010, Ch. 711, Sec. 6. )
CHAPTER 5. Large-Capacity Magazine [32310 – 32450] ( Chapter 5 added by Stats. 2010, Ch. 711, Sec. 6. )
ARTICLE 1. Rules Governing Large-Capacity Magazines [32310 – 32390] ( Article 1 added by Stats. 2010, Ch. 711, Sec. 6. )
(a) Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.
(b) For purposes of this section, “manufacturing” includes both fabricating a magazine and assembling a magazine from a combination of parts, including, but not limited to, the body, spring, follower, and floor plate or end plate, to be a fully functioning large-capacity magazine.
(c) Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, commencing July 1, 2017, any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(d) Any person who may not lawfully possess a large-capacity magazine commencing July 1, 2017 shall, prior to July 1, 2017:
(1) Remove the large-capacity magazine from the state;
(2) Sell the large-capacity magazine to a licensed firearms dealer; or
(3) Surrender the large-capacity magazine to a law enforcement agency for destruction.
(Amended November 8, 2016, by initiative Proposition 63, Sec. 6.1.)
This legislation has been rendered unconstitutional. As a result, many online vendors of shooting accessories have opened up the channels for sales of previously restricted “high-capacity magazines” to Californians.
AN IMPORTANT NOTE: This does not affect Subsection 30515 Materially. California Gun Owner’s should understand the laws that still apply to firearms that may be able to accept all these new “High Capacity Magazines” they intend to buy. The “California Assault Weapons Ban” as it is sometimes colloquially referred to, is actually California Penal code subsection 30515.
Assembly Bill No. 1135
An act to amend Sections 30515 and 30900 of, and to add Section 30680 to, the Penal Code, relating to firearms.
[ Approved by Governor July 01, 2016. Filed with Secretary of State July 01, 2016. ]
LEGISLATIVE COUNSEL’S DIGEST
AB 1135, Levine. Firearms: assault weapons.
(1) Existing law generally prohibits the possession or transfer of assault weapons, except for the sale, purchase, importation, or possession of assault weapons by specified individuals, including law enforcement officers. Under existing law, “assault weapon” means, among other things, a semiautomatic centerfire rifle or a semiautomatic pistol that has the capacity to accept a detachable magazine and has any one of several specified attributes, including, for rifles, a thumbhole stock, and for pistols, a 2nd handgrip.
This bill would revise this definition of “assault weapon” to mean a semiautomatic centerfire rifle or a semiautomatic pistol that does not have a fixed magazine but has any one of those specified attributes. The bill would also define “fixed magazine” to mean an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.
By expanding the definition of an existing crime, the bill would impose a state-mandated local program.
(2) Existing law requires that any person who, within this state, possesses an assault weapon, except as otherwise provided, be punished as a felony or for a period not to exceed one year in a county jail.
This bill would exempt from punishment under that provision a person who possessed an assault weapon prior to January 1, 2017, if specified requirements are met.
(3) Existing law requires that, with specified exceptions, any person who, prior to January 1, 2001, lawfully possessed an assault weapon prior to the date it was defined as an assault weapon, and which was not specified as an assault weapon at the time of lawful possession, register the firearm with the Department of Justice. Existing law permits the Department of Justice to charge a fee for registration of up to $20 per person but not to exceed the actual processing costs of the department. Existing law, after the department establishes fees sufficient to reimburse the department for processing costs, requires fees charged to increase at a rate not to exceed the legislatively approved annual cost-of-living adjustment for the department’s budget or as otherwise increased through the Budget Act. Existing law requires those fees to be deposited into the Dealers’ Record of Sale Special Account. Existing law, the Administrative Procedure Act, establishes the requirements for the adoption, publication, review, and implementation of regulations by state agencies.
This bill would require that any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined, and including those weapons with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, register the firearm with the Department of Justice before January 1, 2018, but not before the effective date of specified regulations. The bill would permit the department to increase the $20 registration fee as long as it does not exceed the reasonable processing costs of the department. The bill would also require registrations to be submitted electronically via the Internet utilizing a public-facing application made available by the department. The bill would require the registration to contain specified information, including, but not limited to, a description of the firearm that identifies it uniquely and specified information about the registrant. The bill would permit the department to charge a fee of up to $15 per person for registration through the Internet, not to exceed the reasonable processing costs of the department to be paid and deposited, as specified, for purposes of the registration program. The bill would require the department to adopt regulations for the purpose of implementing those provisions and would exempt those regulations from the Administrative Procedure Act. The bill would also make technical and conforming changes.
(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES
The people of the State of California do enact as follows:
SECTION 1. Section 30515 of the Penal Code is amended to read:
- (a) Notwithstanding Section 30510, “assault weapon” also means any of the following:
(1) A semiautomatic, centerfire rifle that does not have a fixed magazine but has any one of the following:
(A) A pistol grip that protrudes conspicuously beneath the action of the weapon.
(B) A thumbhole stock.
(C) A folding or telescoping stock.
(D) A grenade launcher or flare launcher.
(E) A flash suppressor.
(F) A forward pistol grip.
(2) A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.
(3) A semiautomatic, centerfire rifle that has an overall length of less than 30 inches.
(4) A semiautomatic pistol that does not have a fixed magazine but has any one of the following:
(A) A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer.
(B) A second handgrip.
(C) A shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning the bearer’s hand, except a slide that encloses the barrel.
(D) The capacity to accept a detachable magazine at some location outside of the pistol grip.
(5) A semiautomatic pistol with a fixed magazine that has the capacity to accept more than 10 rounds.
(6) A semiautomatic shotgun that has both of the following:
(A) A folding or telescoping stock.
(B) A pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip.
(7) A semiautomatic shotgun that has the ability to accept a detachable magazine.
(8) Any shotgun with a revolving cylinder.
(b) For purposes of this section, “fixed magazine” means an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.
(c) The Legislature finds a significant public purpose in exempting from the definition of “assault weapon” pistols that are designed expressly for use in Olympic target shooting events. Therefore, those pistols that are sanctioned by the International Olympic Committee and by USA Shooting, the national governing body for international shooting competition in the United States, and that were used for Olympic target shooting purposes as of January 1, 2001, and that would otherwise fall within the definition of “assault weapon” pursuant to this section are exempt, as provided in subdivision (d).
(d) “Assault weapon” does not include either of the following:
(1) Any antique firearm.
(2) Any of the following pistols, because they are consistent with the significant public purpose expressed in subdivision (c):
MANUFACTURER MODEL CALIBER
BENELLI MP90 .22LR
BENELLI MP90 .32 S&W LONG
BENELLI MP95 .22LR
BENELLI MP95 .32 S&W LONG
HAMMERLI 280 .22LR
HAMMERLI 280 .32 S&W LONG
HAMMERLI SP20 .22LR
HAMMERLI SP20 .32 S&W LONG
PARDINI GPO .22 SHORT
PARDINI GP-SCHUMANN .22 SHORT
PARDINI HP .32 S&W LONG
PARDINI MP .32 S&W LONG
PARDINI SP .22LR
PARDINI SPE .22LR
WALTHER GSP .22LR
WALTHER GSP .32 S&W LONG
WALTHER OSP .22 SHORT
WALTHER OSP-2000 .22 SHORT
(3) The Department of Justice shall create a program that is consistent with the purposes stated in subdivision (c) to exempt new models of competitive pistols that would otherwise fall within the definition of “assault weapon” pursuant to this section from being classified as an assault weapon. The exempt competitive pistols may be based on recommendations by USA Shooting consistent with the regulations contained in the USA Shooting Official Rules or may be based on the recommendation or rules of any other organization that the department deems relevant.
SEC. 2. Section 30680 is added to the Penal Code, to read:
- Section 30605 does not apply to the possession of an assault weapon by a person who has possessed the assault weapon prior to January 1, 2017, if all of the following are applicable:
(a) Prior to January 1, 2017, the person would have been eligible to register that assault weapon pursuant to subdivision (b) of Section 30900.
(b) The person lawfully possessed that assault weapon prior to January 1, 2017.
(c) The person registers the assault weapon by January 1, 2018, in accordance with subdivision (b) of Section 30900.
SEC. 3. Section 30900 of the Penal Code is amended to read:
- (a) (1) Any person who, prior to June 1, 1989, lawfully possessed an assault weapon, as defined in former Section 12276, as added by Section 3 of Chapter 19 of the Statutes of 1989, shall register the firearm by January 1, 1991, and any person who lawfully possessed an assault weapon prior to the date it was specified as an assault weapon pursuant to former Section 12276.5, as added by Section 3 of Chapter 19 of the Statutes of 1989 or as amended by Section 1 of Chapter 874 of the Statutes of 1990 or Section 3 of Chapter 954 of the Statutes of 1991, shall register the firearm within 90 days with the Department of Justice pursuant to those procedures that the department may establish.
(2) Except as provided in Section 30600, any person who lawfully possessed an assault weapon prior to the date it was defined as an assault weapon pursuant to former Section 12276.1, as it read in Section 7 of Chapter 129 of the Statutes of 1999, and which was not specified as an assault weapon under former Section 12276, as added by Section 3 of Chapter 19 of the Statutes of 1989 or as amended at any time before January 1, 2001, or former Section 12276.5, as added by Section 3 of Chapter 19 of the Statutes of 1989 or as amended at any time before January 1, 2001, shall register the firearm by January 1, 2001, with the department pursuant to those procedures that the department may establish.
(3) The registration shall contain a description of the firearm that identifies it uniquely, including all identification marks, the full name, address, date of birth, and thumbprint of the owner, and any other information that the department may deem appropriate.
(4) The department may charge a fee for registration of up to twenty dollars ($20) per person but not to exceed the reasonable processing costs of the department. After the department establishes fees sufficient to reimburse the department for processing costs, fees charged shall increase at a rate not to exceed the legislatively approved annual cost-of-living adjustment for the department’s budget or as otherwise increased through the Budget Act but not to exceed the reasonable costs of the department. The fees shall be deposited into the Dealers’ Record of Sale Special Account.
(b) (1) Any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined in Section 30515, including those weapons with an ammunition feeding device that can be readily removed from the firearm with the use of a tool, shall register the firearm before January 1, 2018, but not before the effective date of the regulations adopted pursuant to paragraph (5), with the department pursuant to those procedures that the department may establish by regulation pursuant to paragraph (5).
(2) Registrations shall be submitted electronically via the Internet utilizing a public-facing application made available by the department.
(3) The registration shall contain a description of the firearm that identifies it uniquely, including all identification marks, the date the firearm was acquired, the name and address of the individual from whom, or business from which, the firearm was acquired, as well as the registrant’s full name, address, telephone number, date of birth, sex, height, weight, eye color, hair color, and California driver’s license number or California identification card number.
(4) The department may charge a fee in an amount of up to fifteen dollars ($15) per person but not to exceed the reasonable processing costs of the department. The fee shall be paid by debit or credit card at the time that the electronic registration is submitted to the department. The fee shall be deposited in the Dealers’ Record of Sale Special Account to be used for purposes of this section.
(5) The department shall adopt regulations for the purpose of implementing this subdivision. These regulations are exempt from the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
The above citations are readily available online, and we leave the interpretation of these citations to the reader. We do not provide legal advice.
Don’t fear purchasing standard and larger capacity magazines for now. But California based shooters should maintain situational awareness as new challenges are made to the striking down of this unconstitutional law. You’ll have a window of time, as the requirement of notification by Mr. Becerra’s office to law enforcement has been mandated as part of the ruling. But you can bet that this is not the last we have heard of it.
Chris Cox, Spokesperson for the NRA said the following: “Judge Benitez took the Second Amendment seriously and came to the conclusion required by the Constitution… The same should be true of any court analyzing a ban on a class of arms law-abiding Americans commonly possess for self-defense or other lawful purposes.” We agree with Mr. Cox’s assessment.
Both organizations are critical components in the solution to undo poor legislation regarding the Second Amendment. This was an NRA backed lawsuit in California.
Nothing included in this article should be misconstrued as legal advice. We do not serve in a capacity to offer competent legal advice, nor does our content provide a platform by which anyone should believe that statements made by authors or staff of this website are providing legal advice.
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BREAKING NEWS: California judge, born in Cuba has ruled a key piece of gun control legislation UNCONSTITUTIONAL! Read about the implications of the ruling, nuances and pieces of his opinion which was 80+ pages. Learn why it will still be challenged and may go up to the Supreme Court of the United States ultimately.
THE AUTHOR’S PERSONAL COMMENTARY ABOUT THIS NEWS
“This is an obvious win for the California gun owner. It is the culmination of a comprehensive look at wat the Second Amendment protects juxtaposed upon what modern legal precedent has stated about the right to bear arms. It is simultaneously, as contemporary, and timeless a statement by a California judge as I have ever seen with regards to a controversial ruling.”
“The opinion is harmoniously in line with what I believe as a champion of gun rights, but we must not get this ruling confused with a new way forward in the fight to protect gun rights in California and overturning unconstitutional laws regarding ownership by law abiding citizens in the state. This is not over.”
“My favorite part aside from the actual opinion being so reality based, is the outcry from the usual suspects who would seek to legislate the Second Amendment into the ground. Genuinely slack jawed responses that showed their shock over the ruling, were issued by Gavin Newsom, Xavier Becerra and other outspoken politicians and talking heads on the others ide of the gun rights debate.”
“A staff attorney named Ari Freilich from the Gifford Law Center made a ridiculous statement about the opinion in his hasty reply showcasing emotion rather than factual material observations. He stated: (about Benitez) that the judge is “…so deeply out of touch that he believes mass shootings are a ‘very small’ problem in this country.” That is a very layered statement by Mr. Freilich.”
“Out of touch with what? Certainly not the statistics. Out of touch with your philosophical ideologies? Out of touch with overhyped media consensus? Out of touch with the ultra-aggressive gun control agenda? If we are to make news on what some zealot says, it certainly shouldn’t be based on emotions, but rather on facts. Mr. Freilich is so out of touch with the reality of the situation, that he thinks facts can be made out of emotions.”
“As an ardent supporter of the Second Amendment, no one cringes more than I do, or is heartbroken as much as I am, every time I hear about a school shooting. But the facts are these: the number of people killed by semi-automatic rifles each year is minsicule compared to the amount killed by hammers, fists, knives, cars, medical accidents in the operating room, etc. Mass shootings are good for no one.”
“Furthermore, the numbers aren’t even close. There are a handful of deaths each year caused by firearms in mass shootings. Millions die yearly in the other above-mentioned scenarios. A life’s value is not predicated on the way they die. A death is a death, whether by cancer, or gang violence. To state that Judge Benitez is the one who is out of touch is patently ridiculous, when this man has determined that a death of a person in a mass shooting event is somehow worse than by a bomb or by a car or by a beheading. Buy your standard capacity and high capacity magazines as soon as you can, and brace yourself for a rise in the tempo and aggressiveness of the conversation and legislation of guns in America. There is more to come on this topic” – Benjamin Worthen
EDIT (04-07-2019): “I felt confident this would be a short-term solution, and it was, but all is not lost. Judge Benitez wrote an articulate and facts-based opinion on a law that is hard to enforce, shows no demonstrable benefit to public safety, and has given opportunity to the legal system to work. The 9th circuit as out of touch on Second Amendment cases as it has been in the past, will surely defer to some level to his ruling and show that his opinion has merit.” – Benjamin Worthen