While some gun activists are questioning the decision by U.S. District Judge Roger Benitez to grant a stay in the case of Duncan v. Becerra—the challenge to California’s magazine capacity limit—it may have been the best move for Golden State gun owners, and all it takes is a careful reading of the order to understand why.
Judge Benitez ruled on March 29 that California’s ban on large capacity magazines, as approved by voters with the passage of Proposition 63 in 2016 is unconstitutional. The state quickly appealed.
In granting the stay, which has an important caveat, Judge Benitez noted up front that California Attorney General Xavier Becerra “has not made a strong showing, to this Court, that he is likely to succeed on the merits.” However, by granting the conditional stay, Judge Benitez effectively headed off an appeal to the Ninth Circuit Court requesting an emergency stay pending appeal of the Benitez ruling last Friday. You can read the stay order here.
The Ninth Circuit could easily have granted the stay without the important condition that Judge Benitez included in his Thursday order.
And what is that important condition? Because Californians began immediately buying large capacity magazines (LCM), and sales have continued this week, Judge Benitez ruled that, “the State of California and the law enforcement agencies therein will remain enjoined (or prevented) from enforcing Calif. Penal Code § 32310 (c) and (d) which would have criminalized the simple possession of a firearm magazine able to hold more than 10 rounds and required disposing of such magazines. This will also continue until the appeal proceedings conclude or the stay is modified or lifted.”
Judge Benitez’ order also notes that “the permanent injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) shall remain in effect for those persons and business entities who have manufactured, imported, sold, or bought magazines able to hold more than 10 rounds between the entry of this Court’s injunction on March 29, 2019 and 5:00 p.m., Friday, April 5, 2019.”
Translation: The stay doesn’t take effect until 5 p.m. Friday, April 5, and magazines manufactured and sold between March 29 and that moment of the stay’s effectiveness appear to be protected.
As noted in an alert from the California Rifle & Pistol Association (CRPA), “(The) ruling stays enforcement of the injunction as applied to the restrictions against the manufacture, importation, sale, transfer, and receipt of so-called “large-capacity” magazines, as of 5 p.m. (Friday, April 5). In other words, those restrictions will once again be enforceable after that time. But the ruling also clarifies that the injunction against those restrictions will remain in effect ‘for those persons and business entities who have manufactured, imported, sold, or bought magazines able to hold more than 10 rounds between the entry of this Court’s injunction on March 29, 2019 and 5:00 p.m., Friday, April 5, 2019.’”
“Additionally,” according to the CRPA alert, “the ruling also makes clear that the preliminary injunction issued in July 2017, which prohibited the enforcement of the ‘possession’ restriction enacted by Proposition 63 and Senate Bill 1446 will remain in effect during the appeal. In other words, California residents who lawfully possess magazines capable of holding more than 10 rounds may continue to possess them while the case is appealed.”
The alert further advised “that anyone who possesses one of the magazines in California refuse to talk to law enforcement if asked about their magazine.”
That said, it may be a good idea for anyone who purchased one or more LCMs during the week to keep a dated sales slip.
A history of the court case can be found here, courtesy of veteran California gun rights attorney Chuck Michel.
In a telephone interview, he told Liberty Park Press that CRPA has spearheaded this case and that the victory, despite the subsequent stay by Judge Benitez, is “big.”
Do you think gun owners will prevail, or will the stay amount to less than a temporary reprieve at best? Share your answers in the comment section.
Dave Workman is the Senior Editor at the Liberty Park Press.
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