July 1 was the day that law-abiding Californians almost became criminals without leaving their homes or lifting a finger.
That’s when Proposition 63’s ban on the possession of high-capacity magazines, those that hold more than 10 rounds of ammunition, was scheduled to go into effect.
To be clear, this law did not ban the sale or purchase of magazines with a capacity of more than 10 rounds, which has been illegal in California since 2000. Proposition 63 made it a crime simply to possess the magazines, which were legal when they were purchased and “grandfathered” as legal under the 2000 law.
Effective July 1, Proposition 63 required the owner of high-capacity magazines in California to sell them to a licensed dealer, move them out of state, turn them over to law enforcement, or become a criminal. The penalty? Up to $100 per magazine and a year in the county jail.
That was too much for a U.S. District Court in San Diego. Judge Roger Benitez agreed with the plaintiffs in a lawsuit challenging the magazine ban that they would suffer irrevocable harm unless the enforcement of the law was halted while the lawsuit went forward. He issued a preliminary injunction just days before the law was to take effect.
Judge Benitez said the law was likely unconstitutional because the Second Amendment right to keep and bear arms encompasses the right of an individual to use “whatever common magazine size he or she judges best suits the situation.” The court also agreed with the plaintiffs that confiscation of the magazines violated the Fifth Amendment’s prohibition on the taking of property for public use without just compensation.
California gun owners have little choice but to rely on the federal courts to restore their rights when state or local authorities erase them. Nearly all states have a version of the Second Amendment in their state constitutions, but California does not.
That makes it easier for a local government, the state Legislature, or even the voters to pass an unconstitutional law that infringes the rights of gun owners, knowing that it will take years for a challenge to the law to reach the U.S. Supreme Court.
In 2008, the Supreme Court ruled 5-4 in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, and in 2010 the court held in McDonald v. Chicago that this right also applies to the states. But since then the justices have turned away case after case regarding regulation of firearms. Last month, the Supreme Court declined to hear the appeal of Edward Peruta, a San Diego man who was denied a permit to carry a concealed weapon because the county sheriff did not consider personal self-defense to be “good cause.”
Proposition 63, a measure which included more regulation of ammunition purchases, passed in November with over 60 percent of the vote, an indication that a majority of California voters support what gun-control advocates call common-sense regulations and what gun-rights advocates view as a relentless, incremental attack on private gun ownership.
But rights are not policies. They can’t be changed at the whim of a majority.
Eventually, the Supreme Court will have to draw the boundaries of state regulation of firearms. California’s law criminalizing the possession of legally purchased property is the first thing that should be declared out of bounds.
