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Injunction Sought in Lawsuit Challenging California’s Total Ban on So-Called “Large Capacity” Firearm Magazines

The plaintiffs believe that California’s confiscatory magazine ban is a taking of their property without just compensation and violates their constitutional rights. 

SACRAMENTO, CA (June 13, 2017) — Attorneys for individual gun owners and civil rights advocacy organizations filed a motion and brief seeking a temporary injunction in a federal civil rights lawsuit challenging the State of California’s ban on so-called “large-capacity” firearm magazines that hold more than 10 rounds.

The case, Wiese, et al. v. Attorney General Xavier Becerra, et al., was filed in the United States District Court for the Eastern District of California and is supported by civil rights groups The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and Firearms Policy Foundation (FPF). A copy of the lawsuit’s key filings, including the motion, can be viewed or downloaded here.

The brief, filed in support of the temporary injunction plaintiffs believe is necessary to keep them from irreparable harm, argues that the State’s “large-capacity” magazine ban laws not only violate Second Amendment rights, but also violate the Constitution’s guarantee of due process, prohibition against government taking of private property without just compensation, and are unconstitutionally vague.

California’s magazine ban laws are a “sweeping prohibition [that] would deprive countless responsible owners of their constitutionally-protected rights [and] is entirely unjustified by the state’s mismatched legislative goal. And because the law is designed around this forced extraction of property, it is not ‘“readily susceptible’ to a limiting construction that would render it constitutional,” said the plaintiffs in the filing. 

“Unless and until the State is enjoined” from enforcing the ban, the brief argues, the plaintiffs and thousands of other like them “would suffer irreparable injury arising from the permanent loss of constitutionally-protected liberty interests and loss of irreplaceable personal property. 

Last July, Senate Bill 1446 (SB 1446) was signed into law by California Governor Jerry Brown, which changed state statutes to completely ban all “large-capacity magazines” – even those which were lawfully owned at the time – as of July 1, 2017. Then, in the November general election, California voters approved Lt. Governor Gavin Newsom’s Proposition 63 (Prop 63) “Safety For All Act” gun control initiative, which also contained language banning “large-capacity” magazines. California voters once also approved Proposition 8, which made same-sex marriage illegal in California. Proposition 8 was ultimately held to be unconstitutional.

Prior to Proposition 63 and SB 1446, many thousands of law-abiding Californians legally owned “grandfathered” “large-capacity” magazines, but now must dispose of them or surrender them to law enforcement.

In a “Finding of Emergency” for related firearm magazine regulations it had sought to issue in December, the California Department of Justice admitted that “[t]here are likely hundreds of thousands of large-capacity magazines in California at this time” and that the “Department therefore expects many gun owners to be affected by the new ban.”

“As we argue in our brief, California’s magazine ban effectively makes law-abiding gun owners surrender their constitutionally-protected property to the government,” said attorney George M. Lee. “That is totally unacceptable and represents exactly the kind of confiscation scheme that California gun owners have reasonably feared would come to pass.”

“By enacting laws that criminalize the mere possession of property that people have lawfully owned for 17 years or more, the State is using the force of its guns to dispossess law-abiding gun owners of theirs,” said Brandon Combs, who leads institutional plaintiffs FPC, FPF, and CGF. “It’s as ironic as it is sad, and sets a dangerous precedent that the government can make you into a criminal by changing its mind about what you own. If the State is allowed to enforce this magazine ban scheme, there’s nothing stopping it from doing the same with thousands of other guns, gun parts, or even diesel automobiles.”

“Enforcement of this ban would immediately place thousands of law-abiding California gun owners in jeopardy of criminal liability and subjects their personal property to forfeiture, seizure and permanent confiscation, which is government taking, without due process or compensation. We cannot allow that to go unchallenged,” SAF founder and Executive Vice President Alan M. Gottlieb said after the case was filed. 

Attorney Raymond DiGuiseppe, a former California deputy attorney general who recently defeated former Attorney General Kamala Harris at the California Supreme Court in an important knife case, has joined attorneys Lee and Douglas A. Applegate on the lawsuit. 

“The inconvenient truth for the government in this case is that its justification for its magazine ban reduces to nothing more than legislative policy choices based on speculative theories about how these standard-capacity magazines could be used to inflict harm – and that is unconstitutional,” DiGuiseppe said.


 

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