On June 29, 2017, the federal District Court for the Southern District of California, in the case entitled Duncan v. Becerra, 2017 U.S. Dist. LEXIS 101549 (S.D. Cal. June 29, 2017), granted an injunction against implementation of California Penal Code section 32310, which prohibits the possession and use of “high-capacity” weapon magazines on the basis that it infringed upon the constitutional right to keep and bear arms under the Second Amendment.

Facts and Background

Section 32310 was amended in the fall of 2016 by the passage of Proposition 63, to be effective on July 1, 2017. With certain exceptions, Section 32310(c) requires those who lawfully possess a firearm magazine capable of holding more than 10 rounds to dispossess them or face criminal penalties of up to one year in a county jail and a fine of up to $100 per magazine, or both. As amended, Section 32310(d) provides three options for dispossession. First, a person may “remove the large-capacity magazine from the State.” Second, a person may “sell the large-capacity magazine to a licensed firearm dealer.” Third, a person may “surrender the large-capacity magazine to a law enforcement agency for destruction.”

Plaintiffs, a group of California residents who own magazines that can hold more than ten rounds of ammunition, brought facial and as-applied challenges through 42 U.S.C. section 1983 seeking a declaratory judgment that Section 32310 impermissibly infringed on California citizens’ federal constitutional right to keep and bear arms under the Second Amendment. By their motion for preliminary injunction, Plaintiffs sought to temporarily prevent the State from enforcing Section 32310’s dispossession requirement and criminal penalties.


Preliminary Injunction Standard

After establishing that the plaintiff had standing and that the case was ripe, the judge described the standard for issuing a preliminary injunction.  A plaintiff seeking a preliminary injunction must establish: (1) that he or she is likely to succeed on the merits; (2) that he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest.

Plaintiffs argued that Section 32310(c) and (d) encroached on their federal Constitutional rights under the Second Amendment and the Takings Clause.

Second Amendment

The California Southern District Court began its Second Amendment discussion by assessing the likelihood of success on the merits. The District Court noted that the United States Supreme Court recognizes an individual’s right to keep and bear arms, including ammunition magazines, under the Second Amendment, for self-defense in the home and for service in a militia.

The Heller Test

The District Court first applied the test utilized by the Supreme Court in District of Columbia v. Heller.[1] The Heller test asks whether the law bans types of firearms that are commonly used for a lawful purpose.  If so, Heller suggests that is all that is needed for citizens to have a right under the Second Amendment. Here, the District Court noted that magazines able to hold more than ten rounds of ammunition are popular, with some estimates suggesting that as many as one hundred million magazines of this type were currently owned by American citizens. The Court determined that Section 32310 (c) and (d) were highly suspect under the Heller test, because they broadly prohibited common pistol and rifle magazines used for lawful purposes.

“Reasonable fit” test

The Court next applied a more complex test that the Ninth Circuit typically used for a Second Amendment challenge. In this analysis, three different two-part tests are applied, after which the sliding scale of scrutiny is selected to assess the relationship between a law and government interests.

First, a court must evaluate the burden and then apply the correct scrutiny. This two-step inquiry: (1) asks whether the challenged law burdens conduct protected by the Second Amendment; and (2) if so, directs courts to apply an appropriate level of scrutiny to gauge the fit between a statute and its purported aim in addressing the State’s interest.

The Court used another two-part test to consider the potential burden imposed by Section 32310(c) and (d). The Court first noted that a ban on ammunition magazines of any size was not one of the presumptively lawful regulatory measures identified in Heller[2]. For the second step, the Court noted that magazine capacity restrictions were not considered historically approved prohibitions inoffensive to the Second Amendment.  Based on these two factors, the Court determined that Section 32310, subdivisions (c) and (d), burdened protected Second Amendment conduct.

Citing precedent involving magazine bans, the Court concluded that intermediate scrutiny was the appropriate level for considering whether Section 32310(c) and (d) was a reasonable fit as a way to achieve the State’s asserted objective.  Intermediate scrutiny meant that the law must further an important government interest by means that are substantially related to that government interest.

State’s Preliminary Evidence Inconclusive

Based on the evidence presented by the government, the Court concluded that the dispossession and criminalization component of Section 32310, subdivisions (c) and (d), was not a reasonable nexus because the evidence presented lacked hard facts and reasonable inferences that Section 32310 was substantially related to the governmental interests of protecting citizens and law enforcement from gun violence, preventing crime and protecting the public safety.  In a detailed look at the data exhibits presented, the Court found that the government presented data and testimonies that were incomplete, outdated, irrelevant, unreliable, or not credible. The Court indicated that the law was not a reasonable fit because, among other things, it required law-abiding concealed carry weapon permit holders and Armed Forces veterans to dispossess themselves of lawfully-owned gun magazines that held more than 10 rounds — or suffer criminal penalties.

Having determined that Plaintiffs had established a likelihood of succeeding on the merits of the Second Amendment argument, the Court next considered the other three elements of the preliminary injunction standard.  The Court found that the ban on magazines with greater than ten rounds incorporated in Section 32310 would cause irreparable injury by potential loss of life in self-defense situations, loss of peace of mind, and loss of property, among other injuries. According to the Court, the balance of equities also weighed against the ban in Section 32310 because the potential for extraordinary harm to Plaintiffs in the form of criminal sanctions outweighed the level of potential hardship upon the State. The Court finally noted that the balance of equities and the public interest merge when an injunction is sought to preserve the status quo.  The Court found that Plaintiffs were entitled to a preliminary injunction to maintain the status quo under the Second Amendment.

Takings Clause

Addressing the Takings Clause, the Court noted that Section 32310 (c) and (d) would deprive Plaintiffs of the use of their property, as well as the property’s possession itself. The District Court noted that Supreme Court precedent cast doubt on the State’s theory that an exercise of the police power cannot constitute physical takings, and that whatever authority the State had to ban the sale or use of magazines over 10 rounds, the Takings Clause prevented it from compelling the physical dispossession of such lawfully-acquired private property without just compensation. The Court therefore concluded that Plaintiffs demonstrated a likelihood of success on the merits of the governmental takings claim.

The Court also found that without compensation, Plaintiffs would be irreparably harmed as they would no longer be able to retrieve or replace their large capacity magazines as long as they resided in California.  The Court determined that the balance of hardships weighed in the Plaintiffs’ favor, while acknowledging that there was some hardship on the State while the preliminary injunction was pending.  The Court also determined that the public interest also favored the protection of an individual’s core Second Amendment rights and his or her protection from an uncompensated governmental taking. Accordingly, the Court also declared that Plaintiffs were entitled to a preliminary injunction to maintain the status quo and prevent irreparable injury under the Takings Clause of the Constitution.

In a separate, but similar case, published the same day, the Eastern District Court, in the case entitled Wiese v. Becerra, 2017 U.S. Dist. LEXIS 101522 (E.D. Cal. June 29, 2017), denied Plaintiffs’ request for a preliminary injunction challenging the same ban imposed by Section 32310.  Plaintiffs had contended that the ban violated the Second Amendment, was an unconstitutional taking, was void for vagueness, and was overbroad. The Eastern District Court concluded that the interests of reducing the incidence and harm of mass shootings and easing enforcement of the State’s existing ban would be achieved less effectively without the ban, revealing a reasonable fit between the ban and these important interests. As a result, the Court determined that Plaintiffs did not meet their burden of showing the likelihood of success on the merits of their Second Amendment claim. Nor did Plaintiffs show that the balance of hardships or public interest weighed in favor of granting a preliminary injunction.  Addressing the other claims, the Court noted that injunctive relief is generally not available for Takings claims, and rejected the contention that the ban was vague or overbroad.


Since Section 32310 as amended would visit irrevocable harm on Plaintiffs, the Court found that a state-wide preliminary injunction was necessary and justified to maintain the status quo. The injunction provides: “Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order or know of the existence of this injunction order, are enjoined 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.”  Accordingly, the broad language of the injunction purports to bind all law enforcement agencies aware of its existence from enforcing the ban on possession and use of high-capacity magazines.  There currently is a dispute within the legal community concerning the ultimate effect of a broadly worded injunction in a non-class action lawsuit filed in federal court, such as the one issued here in the Duncan case.  As such, you should consult with your legal counsel to determine whether or not you should abide by the terms of the preliminary injunction issued concerning Section 32310.

It is anticipated that this matter ultimately will be heard and decided by the Ninth Circuit.  It is further anticipated that, assuming the Attorney General appeals the injunction, he will seek a stay of the injunction pending the appeal.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 554 U.S. 570 (2008).

[2] “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”