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Duncan v. Becerra

United States District Court, S.D. California

June 29, 2017

VIRGINIA DUNCAN, RICHARD LEWIS, PATRICK LOVETTE, DAVID MARGUGLIO, CHRISTOPHER WADDELL, CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC., Plaintiffs,
v.
XAVIER BECERRA, in his official capacity as Attorney General of the State of California, Defendant.

          ORDER GRANTING PRELIMINARY INJUNCTION

          Hon. Roger T. Benitez, United States District Judge

         I. INTRODUCTION

         On July 1, 2017, any previously law-abiding person in California who still possesses a firearm magazine capable of holding more than 10 rounds will begin their new life of crime. That is because California Penal Code § 32310 was amended last fall by the passage of a California ballot initiative, Proposition 63. With this change, § 32310(c) requires persons who lawfully possess these magazines today to dispossess them or face criminal penalties of up to one year in a county jail and a fine of $100 per magazine, or both.[1] Section 32310(d) provides three options for dispossession. First, a person may “remove the large-capacity magazine from the State.” § 32310(d)(1).

         Second, a person may “sell the large-capacity magazine to a licensed firearm dealer.” § 32310(d)(2). Third, a person may “surrender the large-capacity magazine to a law enforcement agency for destruction.” § 32310(d)(3). Naturally, there are statutory exceptions for some individuals such as active and retired law enforcement officers (§§ 32400, 32405, and § 32406). There are also exceptions for employees of armored vehicle businesses (§ 32435) and for movie and television actors when magazines are used as a prop (§ 32445). While there are other exceptions for licensed firearm dealers, manufacturers, and gunsmiths, there are no exceptions made for members of the Armed Forces, or those honorably discharged or retired. Likewise, there are no exceptions for civilian firearms instructors, concealed weapon permit holders, or families who live far from timely help by local law enforcement agencies and who must be self-reliant for their own defense, defense of their families, or of home and property. Finally, there are no exceptions made for citizens who, should the need ever arise, may be called upon to form a militia for the protection of the state from either foreign or domestic enemies.

         A. Complexity

         California's gun laws are complicated. See Peruta v. County of San Diego, 824 F.3d 919, 925 (9th Cir. 2016) (en banc), cert. denied, 2017 WL 176580 (June 26, 2017) (“California has a multifaceted statutory scheme regulating firearms.”). Proposition 63 adds one more layer of complexity. Perhaps too much complexity. See Id. at 953 (Callahan, J., dissenting) (“The counties and California have chipped away at the Plaintiffs' right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban. Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining constitutionality.”). In California, the State has enacted, over the span of two decades, an incrementally more burdensome web of restrictions on the rights of law-abiding responsible gun owners to buy, borrow, acquire, modify, use, or possess ammunition magazines able to hold more than 10 rounds. The language used, the internally-referenced provisions, the interplay among them, and the plethora of other gun regulations, have made the State's magazine laws difficult to understand for all but the most learned experts. See e.g., Cal. Pen. Code § 32310(a) (criminalizing manufacturing, importing, keeping for sale, offering for sale, giving, lending, buying or receiving a large capacity magazine while excepting “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”); § 32310(b) (defining “manufacturing” as fabricating or assembling a magazine from a combination of parts); § 32415(b) (§ 32310 prohibition on lending does not apply to the loan when it “occurs at a place or location where the possession of the large capacity magazine remains in the accessible vicinity of the person to whom the large capacity magazine is loaned”); § 32406(b) (excepting museums and institutional collections open to the public if securely housed and protected from unauthorized handling); § 32406(f) (excepting a “person lawfully in possession of a firearm that the person obtained prior to January 1, 2000, if no magazine that holds 10 or fewer rounds of ammunition is compatible with that firearm and the person possesses the large-capacity magazine solely for use with the firearm”); § 16470 (defining “large capacity magazine” to include an ammunition feeding device with the capacity to accept more than 10 rounds but not including a feeding device “that has been permanently altered so that it cannot accommodate more than 10 rounds, ” and a .22 caliber tube feeding device and a tubular magazine that is contained in a lever-action firearm); § 32311 (criminalizing manufacturing, importing, keeping for sale, offering for sale, giving, lending, buying, or receiving “any large capacity magazine conversion kit”); § 32390 (declaring any large capacity magazine to be a nuisance); § 18010 (destroying nuisance large capacity magazines). Too much complexity fails to give fair notice and violates due process. “[A] penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . . consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Const. Co., 269 U.S. 385, 391 (1926); see also United States v. Lanier, 520 U.S. 259, 266 (1997) (quoting Connally).

         At the preliminary injunction hearing, the attorney for the Attorney General, although well prepared, was not able to describe all of the various exceptions to the dispossession and criminalization components of § 32310. Who could blame her? The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law. Statutes must be sufficiently well-defined so that reasonably intelligent citizens can know what conduct is against the law. The plaintiffs, who are law-abiding responsible residents of California, want to keep pistols and rifles and the magazines that are commonly used with their firearms without running afoul of California's gun control statutes. But these statutes are too complicated to give fair notice.

         B. Magazines Able to Hold More than 10 Rounds Are Popular

         Ammunition magazines that hold more than 10 rounds are popular. Some estimate that as many as 100, 000, 000 such magazines are currently owned by citizens of the United States. Under federal law, they may be bought, sold, lent, used, and possessed. However, unlike citizens and residents of 43 other states, and hundreds if not thousands of local jurisdictions, after June 30, 2017, all law-abiding citizens of California will be deemed criminals if they simply possess a lawfully acquired magazine capable of holding more than 10 rounds of ammunition.

         C. Plaintiffs

         Plaintiffs are a group of California residents who either already own magazines holding more than 10 rounds or who want to own magazines holding more than 10 rounds for their defense of self and state. Plaintiff Richard Lewis is a law-abiding citizen and an honorably discharged 22-year United States Marine Corps veteran. For more than 20 years, Lewis has lawfully possessed and continues to possess large capacity magazines. Plaintiff Patrick Lovette is a law-abiding citizen and an honorably retired 22-year United States Navy veteran. For more than 20 years, Lewis has lawfully possessed and continues to possess large capacity magazines. Plaintiffs allege they lawfully possess large capacity magazines for self-defense and other lawful purposes. Plaintiff California Rifle and Pistol Association, Inc, is a membership organization almost as old as the State of California. The organization represents tens of thousands of its California members.

         D. Constitutional Challenge and Motion for Preliminary Injunction

         Plaintiffs bring facial and as-applied challenges through 42 U.S.C. § 1983 seeking a declaratory judgment that California Penal Code § 32310 (the ban on magazines holding more than 10 rounds) impermissibly infringes on California citizens' federal constitutional right to keep and bear arms, a right protected by the Second Amendment to the United States Constitution. By this motion for preliminary injunction, Plaintiffs seek only to maintain the status quo until a final determination is made on the merits of their constitutional claims, by temporarily restraining the State from enforcing the dispossession requirement and criminal penalties associated with § 32310 (c) & (d).

         E. Two Questions

         Ultimately, this case asks two questions. “Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation? Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia? Because a final decision on the merits is likely to answer both questions “yes, ” but a final decision will take too long to offer relief, and because the statute will soon visit irrevocable harm on Plaintiffs and all those similarly situated, a state-wide preliminary injunction is necessary and justified to maintain the status quo. Because Plaintiffs have demonstrated on this preliminary record a likelihood of success on the merits, a likelihood of irreparable harm, a balance of equities that tips in their favor, and that an injunction would be in the public interest, a preliminary injunction will issue.

         II. ARTICLE III STANDING & RIPENESS

         Defendant does not challenge Plaintiffs' Article III standing at this time. Nevertheless, federal courts are obligated to satisfy themselves that a plaintiff has standing and that the case is ripe. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11 (2004) (reversing because plaintiff lacked standing). To establish Article III standing, a plaintiff must have: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Town of Chester, N.Y. v. Laroe Estates, Inc., S.Ct. __, 2017 WL 2407473, at *4 (June 5, 2017) (citations and quotation marks omitted). “The same principle applies when there are multiple plaintiffs. At least one plaintiff must have standing to seek each form of relief requested in the complaint.” Id. at *5. At a minimum, Plaintiffs Lewis and Lovette have standing to challenge the dispossession requirement and criminalization component of California's large capacity magazine ban and their case is ripe.

         Article III standing analysis recognizes that, where threatened action by government is concerned, courts do not require a plaintiff to expose himself to criminal liability before bringing suit. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007); Steffel v. Thompson, 415 U.S. 452 (1974). Under the statute at issue here, merely continuing to possess a magazine able to hold more than 10 rounds may be charged as a criminal misdemeanor. The injury will be immediate and concrete. See Jackson v. City & County of San Francisco, 829 F.Supp.2d 867, 871-872 (N.D. Cal. 2011). Ripeness, however, does require a credible threat of prosecution. That requirement is satisfied here as the Attorney General has not indicated that § 32310 (c) & (d) will not be enforced on July 1, 2017. Moreover, the State has vigorously enforced § 32310 in the past.[2] Therefore, the Article III requirements of standing and ripeness are satisfied.

         III. STANDARD FOR A PRELIMINARY INJUNCTION

         The standard for issuing a preliminary injunction is well established and not in dispute. A plaintiff seeking a preliminary injunction must establish: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014).

         Plaintiffs claim that § 32310 (c) & (d) trenches on their federal Constitutional rights under the Second Amendment and the Takings Clause. Consequently, a judicial evaluation must be made, beginning with a judgment as to whether there is a likelihood that Plaintiffs will ultimately prevail on the merits of their claims. It is a preliminary judgment. It is made on an incomplete evidentiary record. But the evidence presented is important.[3]

         A. The Second Amendment - Certain Policy Choices Are off the Table

         In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court made absolutely clear that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. The State of California's desire to criminalize simple possession of a firearm magazine able to hold more than 10 rounds is precisely the type of policy choice that the Constitution takes off the table. Because the right to bear arms includes the right to keep and carry ammunition and magazines holding more than 10 rounds for those arms, for both self-defense and to be ready to serve in a militia, the State's criminalization of possession of “large capacity magazines” likely places an unconstitutional burden on the citizen plaintiffs.

         1. Likelihood of Success on the Merits

         The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II. Second Amendment rights are not watered-down, [4]second-class rights.[5] “[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, Ill., 561 U.S. 742, 778 (2010). The right to bear arms for a legal purpose is an inherent right pre-dating and transcending the Second Amendment. “The right there specified is that of ‘bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” United States v. Cruikshank, 92 U.S. 542, 553 (1875), overruled on other grounds, United States v. Miller, 307 U.S. 174 (1939).

         Some may fear that the right to keep and bear arms means citizens hold a right to “possess a deadly implement and thus has implications for public safety, ” and that “there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries.” McDonald, 561 U.S. at 782-83 (argument of the City of Chicago). True enough. But, public safety interests may not eviscerate the Second Amendment.[6] “The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.” McDonald, 561 U.S. at 783 (collecting cases where those likely guilty of a crime are set free because of constitutional rights).

         The Supreme Court recognizes an individual's right to keep and bear arms under the Second Amendment for self-defense in the home. Heller, 554 U.S. at 636. This right to keep and bear arms is fundamental and is incorporated against states under the Fourteenth Amendment. McDonald, 561 U.S. at 791.

         The Supreme Court also recognizes that the Second Amendment guarantee includes firearms that have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Miller, 307 U.S. at 178. Miller implies that possession by a law-abiding citizen of a weapon that could be part of the ordinary military equipment for a militia member, or that would contribute to the common defense, is protected by the Second Amendment.[7] Concluding that magazines holding more than 10 rounds might be found among today's ordinary military equipment or that such magazines would contribute to the common defense, requires only a modest finding.

         a. Self-defense and militia use

         Heller and Miller are not inconsistent. Heller acknowledges that protection for weapons useful to a militia are also useful for defending the home. “It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self defense weapon . . . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Heller, 554 U.S. at 629. As McDonald puts it, “[i]n Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was ‘the central component of the right itself.'” McDonald, 561 U.S. at 742 (emphasis in original).

         In Caetano v. Massachusetts, the Court underscored these two related points from Heller and McDonald. First, the Second Amendment extends to common modern firearms useful for self-defense in the home. Second, there is no merit to “the proposition ‘that only those weapons useful in warfare are protected.'” See Caetano, 136 S.Ct. 1027, 1028 (2016) (per curiam) (quoting Heller, 554 U.S. at 582, 624-25) (remanding for further consideration of whether Second Amendment protects stun guns) (emphasis added); contra Kolbe v. Hogan, 849 F.3d 114, 131 (4th Cir. 2017) (weapons useful in warfare are not protected by the Second Amendment).

         b. Ammunition magazines are arms

         The Second Amendment protects firearms and the ammunition and magazines that enable arms to fire. The Second Amendment does not explicitly protect ammunition. “Nevertheless, without bullets, the right to bear arms would be meaningless. A regulation eliminating a person's ability to obtain or use ammunition could thereby make it impossible to use firearms for their core purpose.” Jackson, 746 F.3d at 967. “Thus the right to possess firearms for protection implies a corresponding right to obtain the bullets necessary to use them.” Id. (citing Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (holding that the right to possess firearms implied a corresponding right to have access to firing ranges in order to train to be proficient with such firearms). Indeed, Heller did not differentiate between regulations governing ammunition and regulations governing the firearms themselves. Id. The same is true for magazines. “Constitutional rights thus implicitly protect those closely related acts necessary to their exercise . . . The right to keep and bear arms, for example ‘implies a corresponding right to obtain the bullets necessary to use them.'” Luis v. United States, 136 S.Ct. 1083, 1097 (2016) (Thomas, J., concurring) (quoting Jackson, 746 F.3d at 967). Without protection for the closely related right to keep and bear ammunition magazines for use with the arms designed to use such magazines, “the Second Amendment would be toothless.” Id.

         Most, if not all, pistols and many rifles are designed to function with detachable magazines. They are necessary and integral to the designed operation of these arms. Of course, when a magazine is detached the magazine is not a firearm. It is not dangerous. It may be made of stainless steel or it may be made of polymers, but it cannot fire a single round of ammunition. Its only function is to hold ammunition. Other parts of a firearm are also necessary and integral to the designed operation, but may be separated (e.g., removable gun barrels, gun sights, trigger assemblies, hand grips, etc.). For firearms designed to have magazines, without the magazine attached, the weapon may be limited to firing a single round in the chamber, or not at all (as is the case with some popular pistols designed for safety reasons to fire only when a magazine is in place). Although the State does not concede the issue, neither does it press its case on the argument that magazines are not “arms” for purposes of Second Amendment analysis. Opposition at 9. Nor has any other court considering the question held that a magazine of any capacity is not subject to Second Amendment review. See e.g., Fyock v. City of Sunnyvale, 25 F.Supp.3d. 1267, 1276 (N.D. Cal. 2014), aff'd, 779 F.3d 991 (9th Cir. 2015) (“Rather, the court finds that the prohibited magazines are ‘weapons of offence, or armour of defence, ' as they are integral components to vast categories of guns.”). Thus, that which the State defines as a “large capacity magazine” will be analyzed according to Second Amendment principles. This is the theater of operations in which the constitutional battle will be fought.

         2. Second Amendment Tests

         a. The tripartite binary test with a sliding scale and a reasonable fit

         For a Second Amendment challenge, the Ninth Circuit uses what might be called a tripartite binary test with a sliding scale and a reasonable fit. In other words, there are three different two-part tests, after which the sliding scale of scrutiny is selected. Most courts select intermediate scrutiny in the end. Intermediate scrutiny, in turn, looks for a “reasonable fit.” Courts in other circuits tend to also use some variation of a multi-part test with the result that intermediate scrutiny is applied to gun restrictions. It is, unfortunately, an overly complex analysis that people of ordinary intelligence cannot be expected to understand. These complicated legal tests, which usually result in Second Amendment restrictions passing an intermediate scrutiny test (a test that is little different from a rational basis test), appear to be at odds with the simple test used by the Supreme Court in Heller. The Heller test is a test that anyone can figure out.

Heller asks whether the law bans types of firearms commonly used for a lawful purpose - regardless of whether alternatives exist. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. . . .
Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
Friedman v. City of Highland Park, 136 S.Ct. 447, 449 (2015) (Justices Thomas and Scalia dissenting from denial of certiorari) (emphasis added) (citations omitted). A complicated Second Amendment test obfuscates as it extirpates, but it is the test that this Court is bound to follow.

         b. Constitutionally suspect under the simple test

         Under the simple Heller test, § 32310 (c) & (d) are highly suspect. They are suspect because they broadly prohibit common pistol and rifle magazines used for lawful purposes. “[T]hat is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” Friedman, 136 S.Ct. at 449.

         Magazines holding more than 10 rounds are useful for self-defense by law-abiding citizens. And they are common. Lawful in at least 43 states and under federal law, these magazines number in the millions. Cf. Hollis v. Lynch, 827 F.3d 436, 449 (5th Cir. 2016) (defining the term “common” by applying the Supreme Court test in Caetano of 200, 000 stun guns owned and legal in 45 states being “common”); see also NYSR&PA v. Cuomo, 804 F.3d 242, 255-57 (2nd Cir. 2015) (noting large-capacity magazines are “in common use” as the term is used in Heller based on even the most conservative estimates). To the extent they may be now uncommon within California, it would only be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. To say the magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning. See Friedman v. City of Highland Park, Illinois, 784 F.3d 406, 409 (7th Cir. 2015) (“Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so the it isn't commonly used. A law's existence can't be the source of its own constitutional validity.”).

         Nevertheless, § 32310 (c) & (d) are suspect even under the more complicated analysis employed by the Ninth Circuit Court of Appeals, because the statute is not a reasonable fit as a means to achieve the State's important objectives. To pass muster under the intermediate scrutiny test a statute must have “a reasonable fit” with the State's important interest. The analysis works like this.

         c. Constitutionally suspect under the “reasonable fit” test

         i. burden & scrutiny

         First, a court must evaluate the burden and then apply the correct scrutiny. Jackson, 746 F.3d at 960 (citing United States v. Chovan, 735 F.3d 1127, 1136-37 (9th Cir. 2013)). “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.'” Bauer v. Becerra, 858 F.3d 1216, 2017 WL 2367988, at *3 (9th Cir. 2017) (quoting Jackson, 746 F.3d at 960). As discussed below, § 32310 (c) & (d) burden conduct protected by the Second Amendment.

         ii. presumptively lawful or historical regulation

         In determining whether a given regulation falls within the scope of the Second Amendment under the first step of this inquiry, another two-step test is used. “[W]e ask whether the regulation is one of the ‘presumptively lawful regulatory measures' identified in Heller, or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment.” Id. (citations omitted). If the regulation is presumptively lawful, the inquiry ends. Likewise, if the regulation is a historically approved prohibition not offensive to the Second Amendment, the inquiry ends. Section 32310 (c) & (d) fail both parts of the test. A complete ban on ammunition magazines of any size is not one of the presumptively lawful regulatory measures identified in Heller. Neither is there any evidence that magazine capacity restrictions have a historical pedigree.

         iii. closeness to the core and severity of the burden

         If the constitutional inquiry may continue, then the correct level of scrutiny must be selected. For that selection a third two-step evaluation is required. The first step measures how close the statute hits at the core of the Second Amendment right. The second step measures how severe the statute burdens the Second Amendment right. “Because Heller did not specify a particular level of scrutiny for all Second Amendment challenges, courts determine the appropriate level by considering ‘(1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on that right.'” Bauer, 2017 WL 2367988, at *4 (quoting Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016)). Fyock v. City of Sunnydale, 779 F.3d 991, 999 (9th Cir. 2015), has already recognized that a regulation restricting law-abiding citizens from possessing large-capacity magazines within their homes hits at the core of the Second Amendment. Fyock said, “[b]ecause Measure C restricts the ability of law-abiding citizens to possess large capacity magazines within their homes for the purpose of self-defense, we agree with the district court that Measure C may implicate the core of the Second Amendment.” Id.

         iv. the sliding scale of scrutiny

         Heller says the core of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of their home. 554 U.S. at 635.

Guided by this understanding, our test for the appropriate level of scrutiny amounts to ‘a sliding scale.' A law that imposes such a severe restriction on the fundamental right of self defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny. Further down the scale, a law that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny. Otherwise, intermediate scrutiny is appropriate.

Bauer, 2017 WL 2367988, at *4 (citations and quotations marks omitted). Where a restriction “...does not ‘severely burden' or even meaningfully impact the core of the Second Amendment right, . . . intermediate scrutiny is . . . appropriate.” See Id. (citing Silvester, 843 F.3d at 821 and Chovan, 735 F.3d at 1138). Fyock held that the district court did not abuse its discretion in finding Sunnyvale's magazine capacity restriction did not have a severe impact. “[T]here was no abuse of discretion in finding that the impact Measure C may have on the core Second Amendment right is not severe and that intermediate scrutiny is warranted.” 779 F.3d at 999.

         The State argues as a foregone conclusion that intermediate scrutiny is the correct point on the sliding scale for a regulation on magazines. According to the State, Fyock's approval of “intermediate scrutiny” is controlling, and other courts have applied intermediate scrutiny to regulations on large capacity magazines. The approach is consistent with past cases analyzing the appropriate level of scrutiny under the second step of Heller, as the Ninth Circuit has repeatedly applied intermediate scrutiny. See e.g., Silvester, 843 F.3d at 823 (applying intermediate scrutiny to a law mandating ten-day waiting periods for the purchase of firearms); Fyock, 779 F.3d at 999 (applying intermediate scrutiny to a law prohibiting the possession of large capacity magazines); Jackson, 746 F.3d at 965, 968 (applying intermediate scrutiny to laws mandating certain handgun storage procedures in homes and banning the sale of hollow-point ammunition in San Francisco); Chovan, 735 F.3d at 1138 (applying intermediate scrutiny to a law prohibiting domestic violence misdemeanants from possessing firearms). Applying intermediate scrutiny, Fyock did find that the plaintiffs were unlikely to succeed on the merits.

         The difference here, and it is a important difference, is that the district court in Fyock had before it an evidentiary record that was credible, reliable, and on point. Fyock, 779 F.3d at 1000 (“Ultimately, the district court found that Sunnyvale submitted pages of credible evidence, from study data to expert testimony to the opinions of Sunnyvale public officials, indicating that the Sunnyvale ordinance is substantially related to the compelling government interest in public safety.''). That is not the case here. Here, the Attorney General has submitted at this preliminary stage incomplete studies from unreliable sources upon which experts base speculative explanations and predictions. The evidentiary record is a potpourri of news pieces, State-generated documents, conflicting definitions of “mass shooting, ” amorphous harms to be avoided, and a homogenous mass of horrible crimes in jurisdictions near and far for which large capacity magazines were not the cause.

         v. tailoring required: “a reasonable fit”

         Assuming intermediate scrutiny applies, “a reasonable fit” test is conducted. “Our intermediate scrutiny test under the Second Amendment requires that (1) the government's stated objective . . . be significant, substantial, or important; and (2) there . . . be a ‘reasonable fit' between the challenged regulation and the asserted objective.” Silvester, 843 F.3d at 821-22 (quoting Chovan, 735 F.3d at 1139). Under the second prong “intermediate scrutiny does not require the least restrictive means of furthering a given end.” Id. at 827 (quoting Jackson, 746 F.3d at 969).

         vi. four important California interests

         In this case, the Attorney General identifies four State interests. Each is important. The four articulated State interests are: (1) protecting citizens from gun violence; (2) protecting law enforcement from gun violence; (3) protecting the public safety (which is similar to protecting citizens and law enforcement from gun violence); and (4) preventing crime. See Oppo. at 9; 17-18. The question then becomes, whether the dispossession and criminalization components of § 32310's ban on firearm magazines holding any more than 10 rounds is a reasonable fit for achieving these important goals. For intermediate scrutiny “the burden of justification is demanding and it rests entirely on the State.” Tyler v. Hillsdale County Sheriff's Dept., 837 F.3d 678, 694 (6th Cir. 2016) (quoting United States v. Virginia, 518 U.S. 515, 533 (1996) (considering the constitutionality of 18 U.S.C. §922(g)(4)'s permanent gun ban for person previously treated for mental illness).

         This Court finds on the preliminary evidentiary record before it that the dispossession and criminalization component of §32310 (c) & (d) is not a reasonable fit. It may well be that on a more robust evidentiary showing, made after greater time and testimony is taken, that the State will be able to establish a reasonable fit. But not yet. The Attorney General asserts that empirical evidence is not required. Oppo. at 19. He asserts that the substantial evidence demonstrating a reasonable fit can take other softer forms such as “history, consensus, and simple common sense, ” as well as “correlation evidence” and even simply ...


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