Penal Code section 32310(a) creates criminal liability for “any person . . . 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” a large-capacity magazine (“LCM”), which is defined as “any ammunition feeding device with the capacity to accept more than 10 rounds.”[1]

Plaintiffs—five individuals and the California Rifle & Pistol Association, Inc. — filed an action in the Southern District of California challenging the constitutionality of Section 32310 under the Second Amendment.  On September 22, 2023, the District Court issued an order declaring Section 32310 “unconstitutional in its entirety” and enjoining California officials from enforcing the law.[2]  On September 26th, California Attorney General Rob Bonta filed an emergency motion for a partial stay pending appeal.  The Attorney General sought to stay “all portions of the order except those regarding Sections 32310(c) and (d), which relate to large-capacity magazines that were acquired and possessed lawfully prior to the district court’s order granting a permanent injunction.”


The Ninth Circuit Court of Appeals explained that when deciding whether to grant a stay pending appeal, “a court considers four factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the publicinterest lies.'” Nken v. Holder, 556 U.S. 418, 425-26 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

As to the first factor, the Ninth Circuit observed that in N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), the Supreme Court reiterated that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” 142 S. Ct. 2111, 2128 (2022) (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008)).  The Court of Appeals determined that the Attorney General made “strong arguments that Section 32310 comports with the Second Amendment under Bruen.”  The Ninth Circuit noted that ten other federal district courts had considered a Second Amendment challenge to large-capacity magazine restrictions  since Bruen was decided, but only one of those courts—the Southern District of Illinois—granted a preliminary injunction, finding that the challenge was likely to succeed on the merits.[3]  In that Southern District of Illinois case, the Seventh Circuit subsequently stayed the District Court’s order pending appeal[4] – which was the same relief the California Attorney General sought here.  The Ninth Circuit concluded that the Attorney General was likely to succeed on the merits.

The Court emphasized that an order granting a partial stay pending appeal would neither decide nor prejudge the merits of the appeal.  The merits of the appeal would be decided after full briefing and oral argument.  Cf. Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1177 n.4 (9th Cir. 2021) (explaining that “predicting the likelihood of success of the appeal” is a “step removed from the underlying merits” (quoting E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 660-61 (9th Cir. 2021))); Doe #1 v. Trump, 957 F.3d 1050, 1062 (9th Cir. 2020) (noting that when adjudicating a motion before considering the merits of the underlying appeal, “we must take care not to prejudge the merits of the appeal, but rather to assess the posture of the case in the context of the necessity of a stay pending presentation to a merits panel”).

Considering the second factor, the Ninth Circuit decided that the Attorney General had shown that California would be irreparably harmed without a stay pending appeal by presenting evidence that large-capacity magazines pose significant threats to public safety.  The Court stated that if a stay was denied, California “indisputably will face an influx of large-capacity magazines like those used in mass shootings in California and elsewhere.”  The Court agreed, and plaintiffs conceded, that when the District Court first enjoined Section 32310 in 2019, decades of pent-up demand drove the purchase of millions of magazines over ten rounds in less than one week.

Third, the Court did not find that the stay, while the merits of this appeal were pending, would substantially injure other parties interested in the proceedings, noting that the public was still able to purchase and possess a wide range of firearms, as much ammunition as they want, and an unlimited number of magazines containing ten rounds or fewer because Section 32310 did not preclude these activities.

Lastly, the Ninth Circuit stated that “the public interest tips in favor of a stay.  The public has a compelling interest in promoting public safety, as mass shootings nearly always involve large-capacity magazines, and, although thepublic has an interest in possessing firearms and ammunition for self-defense, that interest is hardly affected by this stay.”

Accordingly, the Ninth Circuit concluded that a stay pending appeal was warranted, emphasizing that at this stage of the litigation, the Court decided only whether to stay, in part, the District Court’s order while this appeal is pending.

Judge Bumatay, joined by three other judges, dissented, stating that the majority failed to follow the directives of the Supreme Court in Bruen.  The dissent maintained that, rather than explaining its decision by justifying Section 32310 by looking to historical tradition as Bruen directed, the majority instead “resorts to simply citing various non-binding district court decisions.”  The dissent stated that the Ninth Circuit had “repeatedly acquiesced to the violation of Californians’ right to bear arms.  Now it does so again, without even analyzing the merits of this case.  Enough should be enough.”


At this juncture, the stay of enforcement is in place.  Accordingly, Penal Code section 32310 remains good law at this time, and may legally be enforced.  Time will tell if this provision is ultimately found to be constitutional or not.  We will continue to provide updates to you as this legal challenge progresses through the courts.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.

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] Penal Code section 16740.

[2] Duncan v. Bonta, No. 17-CV-1017-BEN (JLB), 2023 U.S. Dist. LEXIS 169577, 2023 WL 6180472, at *35-36 (S.D. Cal. Sept. 22, 2023).

[3] See Barnett v. Raoul, 2023 U.S. Dist. LEXIS 74756, 2023 WL 3160285 (S.D. Ill. Apr. 28, 2023) (granting plaintiffs’ preliminary injunction); Or. Firearms Fed’n v. Kotek, 2023 U.S. Dist. LEXIS 121299, 2023 WL 4541027 (D. Or. July 14, 2023) (holding that the state’s restriction on large-capacity magazines did not violate the Second Amendment); Brumback v. Ferguson, 2023 U.S. Dist. LEXIS 170819, 2023 WL 6221425 (E.D. Wash. Sept. 25, 2023) (denying plaintiffs’ motion for a preliminary injunction); Nat’l Ass’n for Gun Rights v. Lamont, 2023 U.S. Dist. LEXIS 134880, 2023 WL 4975979 (D. Conn. Aug. 3, 2023) (same); Herrera v. Raoul, 2023 U.S. Dist. LEXIS 71756, 2023 WL 3074799 (N.D. Ill. Apr. 25, 2023) (same); Hanson v. Dist. of Columbia, 2023 U.S. Dist. LEXIS 68782, 2023 WL 3019777 (D.D.C. Apr. 20, 2023) (same); Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., 2023 U.S. Dist. LEXIS 51322, 2023 WL 2655150 (D. Del. Mar. 27, 2023) (same); Bevis v. City of Naperville Ill., 2023 U.S. Dist. LEXIS 27308, 2023 WL 2077392 (N.D. Ill. Feb. 17, 2023) (same); Ocean State Tactical, LLC v. Rhode Island, 646 F. Supp. 3d 368 (D.R.I. 2022) (same); Or. Firearms Fed’n, Inc. v. Brown, 644 F. Supp. 3d 782 (D. Or. 2022) (same).

[4] Herrera v. Raoul, No. 23-1793 (7th Cir. May 12, 2023) (order).