California Criminal Defense Lawyer Blog
It took five years, but Prop 63 is now the law. In 2016, the California voters passed Prop 63, which outlawed most “large capacity magazines,” as defined by the proposition as a magazine that holds more than ten rounds of ammunition. The nascent law was challenged in federal district court, resulting in a preliminary injunction on implementation of the law after the federal judge found the law to be an unconstitutional violation of the Second Amendment. The questions were complex, but at its core, the questions before the district court were: “”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?” (Duncan v. Becerra, 265 F.Supp.3d 1106, 1112 (S.D. Cal. 2017) .) This was the beginning of many years of court wrangling.
In 2020, the Ninth Circuit upheld the district court’s ruling. In a nutshell, the Ninth Circuit found that the new law infringed on the right of a citizen to self-defense. Although the Ninth Circuit was not speaking broadly about all gun control measures – and, in fact, found the goal of reducing gun control laudable – the court, noted that half of all magazines owned in America are “large capacity magazines” as defined by Prop 63, and would thus make “unlawful magazines that are commonly used in handguns by law-abiding citizens for self-defense . . . burden[ing] the core right of self-defense guaranteed to the people under the Second Amendment.” (Duncan v. Becerra, 970 F.3d 1133, 1169 (9th Cir. 2020)
But wait there’s more. Last month (November 2021), the Ninth Circuit Court of Appeal reversed itself. Once again, the reasoning of the decision is complex and may seem a bit convoluted, as quite frankly, many case decisions are. But this time around, the court did not ask whether the new law implicated Second Amendment rights, except to say that the law placed a minimal burden on core Second Amendment rights. Instead, the court focused on the rights of the state’s (California) interest in reducing gun violence. Noting that the Prop 63 restriction on large capacity magazines does not outlaw all firearms or restrict a law-abiding citizen’s right to self-defense but does reasonably support California’s effort to reduce the incidence of mass shooting and murders.
Bottom line: It’s the law, it’s not the law, it’s the law again.
Unless some other challenge comes along, Prop 67, codified in our Penal Code as section 32310 is now the law of the state. What this means for anyone residing in California is that the possession of a magazine that holds over ten rounds is unlawful. It does not matter if the magazine was purchased or possessed prior to this law. There are some exceptions, but generally speaking, if you own or possess a large capacity magazine as defined, you must either remove it from the state, sell it to a licensed firearms dealer, or surrender the magazine to a law enforcement agency. (Penal Code §32310 (d).) Considering that, as noted by the Ninth Circuit, half of all magazines owned in America hold more than ten rounds, we can be certain that a fair number of these magazines are currently possessed by Californians. As it is, what was legal yesterday is not legal today and continuing to possess such a magazine can be charged as an infraction with fines or a misdemeanor with a penalty of incarceration in county jail for up to one year.
While this law is fully enforceable, law enforcement cannot just search for these illegal magazines without probable cause. Violations and arrests of otherwise law-abiding residents will most likely occur when the firearm equipped with the unlawful magazine is used in self-defense or the weapon is found as a consequence of some other police encounter. Many California residents, I suspect, are violating this new law and some may find themselves, to their surprise, arrested for possession of the now illegal magazine. While there are defenses, ignorance of the law is not one.
Orange County criminal defense attorney William Weinberg defends your rights to the full extent of the law. If you are charged with a crime or you believe you are being investigated for a criminal offense, the best defense is early and proactive. Contact Mr. Weinberg for a complimentary review of your case or concerns. Call Attorney Weinberg at his Irvine office at 949-474-8008 or email him at bill@williamweinberg.com.