Duncan v. Becerra (265 F. Supp. 3d 1106, 2017)

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. 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, — U.S. -, 137 S.Ct. 1995, 198 L.Ed.2d 746 (June 26, 2017) (“California has a multifaceted statutory scheme regulating fire-arras.”)- 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 moré than 10 rounds but not including a feeding device “that hás 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, 46 S.Ct. 126, 70 L.Ed. 322 (1926); see also United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (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) impermissi-bly 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, 124 S.Ct. 2301, 159 L.Ed.2d 98 (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., — U.S. -, 137 S.Ct. 1645, 198 L.Ed.2d 64, 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, 124 S.Ct. 2301. 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, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (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. 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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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.

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

In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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, 128 S.Ct. 2783. 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, second-class' rights. “[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, 130 S.Ct. 3020, 177 L.Ed.2d 894 (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, 23 L.Ed. 588 (1875), overruled on other grounds, United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (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, 130 S.Ct. 3020 (argument of the City of Chicago). True enough. But, public safety interests may not eviscerate the Second Amendment. “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, 130 S.Ct. 3020 (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, 128 S.Ct. 2783. This right to keep and bear arms is fundamental and is incorporated against states under the Fourteenth Amendment. McDonald, 561 U.S. at 791, 130 S.Ct. 3020.

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, 59 S.Ct. 816. 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. 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, 128 S.Ct. 2783. 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, 130 S.Ct. 3020 (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, - U.S. -, 136 S.Ct. 1027, 1028, 194 L.Ed.2d 99 (2016) (per curiam) (quoting Heller, 554 U.S. at 582, 624-25, 128 S.Ct. 2783) (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, - U.S. -, 136 S.Ct. 1083, 1097, 194 L.Ed.2d 256 (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 of-fence, 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, - U.S. -, 136 S.Ct. 447, 449, 193 L.Ed.2d 483 (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 Caeta-no 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, 1221 (9th Cir. 2017) (quotingJackson, 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, 858 F.3d at 1222 (quoting Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016)). Fyock v. City of Sunnyvale, 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. Fyoek 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, 128 S.Ct. 2783.

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, 858 F.3d at 1222 (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). Fyoek 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 fee-arms). 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, 116 S.Ct. 2264, 135 L.Ed.2d 735 (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 evi-dentiary 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 eviden-tiary 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 “intuition.” Oppo. at 19-20. But if this “evidence” were sufficient, all firearm restrictions except an outright ban on all firearms would survive review.

Yet, as the Second Circuit cautioned, “on intermediate scrutiny review, the state cannot ‘get away with shoddy data or reasoning.’ To survive intermediate scrutiny, the defendants must show ‘reasonable inferences based on substantial evidence’ that the statutes are substantially related to the governmental interest.” NYSR & PA, 804 F.3d at 264 (citations omitted) (emphasis in original) (striking down New York State’s 7-round magazine limit). This Court declines to rely on anything beyond hard facts and reasonable inferences drawn from convincing analysis, which amounts to substantial evidence based on relevant and accurate data sets, when considering whether to maintain the status quo or permit a state experiment that will irrevocably harm law-abiding responsible magazine-owning citizens.

cl. The State’s evidence

The State’s preliminary theoretical and empirical evidence is inconclusive. In fact, it would be reasonable to infer, based on the State’s evidence, that a right to possess magazines that hold more than 10 rounds may promote self-defense — especially in the home — and would be ordinarily useful for a citizen’s militia use. California must provide more than a rational basis to justify its sweeping ban on mere possession. See e.g., Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) (“Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban [on carrying guns in public] is justified by an increase in public safety. It has failed to meet this burden.”).

So what is the evidence? The Attorney General has provided expert declarations and 3,100 pages of exhibits. Much of the evidence submitted is dated. Approximately 75% of the exhibits the Attorney General has submitted are older than 2013. The documents that are more recent include various surveys of shooting incidents, news articles, position pieces, and firearm descriptions. The amalgamation of exhibits often seems irrelevant. For example, Exhibit 37 is a smorgasbord of news articles about guns. Among the offerings is a piece about thirteen separate incidents in Australia going back to 1867 in which there are no mentions of large capacity magazines. Oppo. Gordon Declaration Exh. 37, at 101-04. At Exhibit 37, page 151-52, one finds a news piece about a 17-year-old incident in Brazil involving a submachine gun. News about events in Paris, France and Shfaram, Israel fill pages 162-165 and 175-177, while page 195 tells of a shooter in 2010 using a revolver, and page 132 recounts a shooter using two revolvers.

Another exhibit, the Attorney General’s Exhibit 50, appears to be a 100-page, 8-point type, 35-year survey of shooting incidents published by Mother Jones magazine. Oppo. Gordon Declaration at Exh. 50.. Mother Jones magazine has rarely been mentioned by any court as reliable evidence. It is fair to say that the magazine survey lacks some of the earmarks of a scientifically designed and unbiased collection of data. In another example, Attorney General’s Exhibit 30 includes an article from Mother Jones Magazine with a headline, “‘A Killing Machine’: Half of All Mass Shooters Used High-Capacity Magazines.” Oppo. Gordon Declaration at Exh. 30. Yet, as will be discussed below, the survey found at Attorney .General’s Exhibit 59 describes in detail only six incidents out of 92 where a mass shooter used a high capacity magazine. Attorney General’s Exhibit 14 contains an expert declaration from Christopher Koper that relies, inter alia, on Exhibit 30. The expert then concedes that “[Assessing trends in LCM [large capacity magazine] use is much more difficult because there was, and 'is, no national data source on crimes with LCMs, and few local jurisdictions maintain this sort of information.” Oppo. Gordon Declaration at Exh. 14, n.7 & ¶ 47. Further illustrating the lack of hard data underlying the muddled evidence, Koper then attaches his own published report in support of his Exhibit 14 declaration. Titled “An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003,” Koper summarizes his findings. He states, “it is not clear how often the ability to fire more than 10 shots without reloading (the current magazine capacity limit) affects the outcomes of gun attacks. All of this suggests that the ban’s impact on gun violence is likely to be small.”- Id, at Exhibit “C,” ¶ 3.3. -

i. The Mayors Against Illegal Guns survey

Another exampié of California’s evidence is a survey of mass shooting incidents found in the Attorney General’s Exhibit 59. Oppo. Gordon Declaration at Exh. 59. The Attorney General relies specifically on Exhibit 69 in its brief. Oppo. at 11-12. Yet, Exhibit 59 tends to prove the opposite of a justification for § 32310 (c) & (d), ie., it tends to prove there is no need to dispossess and criminalize law-abiding responsible citizens currently possessing magazines holding more than 10 rounds.

Exhibit 59 is a shorter survey of mass shooting incidents that occurred between January 2009 and September 2013. The survey was produced by Mayors’Against Illegal Guns. Although the survey describes little about the protocols used to select its data, it does describe in helpful detail 92 mass shooting incidents (where a mass shooting is defined using the FBI’s definition of an incident where four or more people were killed with a gun). The survey describes itself as relying on FBI reports and media reports. Though the study is not ideal, because gun violence is a deadly serious issue, some empirical data needs to be carefully reviewed for purposes of the motion for preliminary injunction.

Thus, to test the claims made by the Attorney General against a set of data he himself offers in support of his justification of § 32310 (c) & (d), the Court has reviewed closely the 92 incidents described in Ex 59. Exhibit 69, like the rest of the Attorney General’s anthology of evidence, does not demonstrate that the ban on possession of- magazines holding any - more than 10 rounds is a reasonable fit, at least at this preliminary stage of the proceedings.

Intermediate scrutiny requires the State to demonstrate a reasonable fit. A reasonable fit cannot be just any fit. This is not simply a policy decision by the State. This affects a Constitutionally protectéd right. The State may experiment. The State need not create a tight fit. The State need not choose the least restrictive means to achieve its important goals. But the means must provide a reasonable fit. The Attorney General claims that magazines holding any more than 10 rounds may be useful and appropriate in' the military context, but they pose a distinct threat to safety in private settings as well as places of assembly. The Attorney General asserts that the “military-style features of LCMs make them particularly attractive to mass shooters and other criminals and pose heightened risks to innocent civilians and law enforcement.” Oppo. at 11. He asserts'that “LCMs are used disproportionately in mass killings and in murders of police.” Oppo. at 11. The Mayors Against Illegal Guns survey (hereinafter “Mayors’ survey”) belies these assertions. Oppo. Gordon Declaration, Exh. 59.

(a)of 92 cases, only 10 are from California

What does the Mayors’ survey teach about the fit of California’s statute? First, it is noted that 82 of the 92 cases are from jurisdictions beyond California. Only ten of the 92 mass shootings in the survey took place in California. These ten incidents prove very little about whether § 32810 (c) & (d)-provide a reasonable fit — or means— of achieving the State’s four public safety goals.

(b)the 10 California cases examined

In three of the ten California incidents, the firearm is unknown and the magazine type, if any, is unknown.’ (#52 Willow-brook (2/11/11), # 65 Los Angeles (4/3/10), # 92 Wilmington (1/27/09)). In a - fourth incident, a revolver was used. (# 18 Tule River Reservation (12/8/12)). Revolvers, of course, do not use magazines at all. in a fifth incident, a pistol was used but no mention is made of a magazine holding any more than 10 rounds. (#20 Northridge (12/2/12)). In a sixth incident, a pistol was used with four (legal) 10-round magazines', (#31 Oakland (4/2/12)). This, of course, tends to prove the statute would not have the desired effect. In two more incidents, the pistols used were purchased legally in California. (#40 Seal Beach (10/12/11); # 84 Santa Clara (3/29/09)). These would have been sold with California-legal 10-round magazines. No mention is made of larger magazines being used. If that' was the case, then again the data tends to prove that the statute would have no good effect.

(c)no effect in eight cases

In other words, only ten of 92 mass shootings occurred in California and § 32310 (c) & (d) would have had no effect on eight of those ten,. The criminalization of possession of magazines holding more than 10 rounds would- have had no effect on mass killings by revolver. It would have had no effect on pistols bought legally in California because they are sold with 10-round magazines. It would have had no effect on shootings where magazines holding any more than 10 rounds were not used.

(d)a closer look at the two magazine cases

Of the 92 mass shootings recorded in the Mayors’ survey, only two occurred in California and involved the use of illegal magazines. (# 7 Santa Monica (6/7/13) and # 85 Oakland (3/21/09)). In the Santa Monica incident, the shooter brought multiple firearms, as happens to be the case in almost all “mass shootings.” He brought an AR-15, a revolver, and 3 zip guns. He reportedly possessed forty 30-round magazines. He killed five victims. The survey notes that the AR-15 and the illegal magazines may have been illegally imported from outside of California. Receiving and importing magazines holding any more than 10 rounds was already unlawful under California law at the time of the Santa Monica tragedy. In that instance, criminalizing possession of magazines holding any more than 10 rounds likely would not have provided additional protection from gun violence for citizens or police officers or prevented the crime.

In the remaining incident, a shooter in Oakland, California also brought multiple guns. He used an SKS assault-type rifle with a magazine holding more than 10 rounds and a pistol. He killed four policemen. He killed the first two policemen with the pistol when officers stopped his car in a traffic stop. He then fled on foot to an apartment. Two more officers were killed with the assault rifle and an illegal large capacity magazine and a third was wounded. The murderer had a lengthy criminal history, according to the Mayors’ survey. At the time of the mass shooting, the killer was on parole for assault with a deadly weapon. As such, he was already prohibited from possessing any kind of gun. As in the Santa Monica example, criminalizing possession of magazines holding any more than 10 rounds likely would not have provided additional protection from gun violence for citizens and police officers or prevented crime in the Oakland example,

(e)conclusions from California cases

To sum up, of the 92 mass killings occurring across the 50 states between 2013 and 2009, only ten occurred in California. Of those ten, the criminalization and dispossession requirements of § 32310 would have had no effect on eight of the shootings, and only marginal good effects had it been in effect at the time of the remaining two shootings. On this evidence, § 32310 is not a reasonable fit. It hardly fits at all. It appears on this record to be a haphazard solution likely to have no effect on an exceedingly rare problem, while at the same time burdening the constitutional rights of other California law-abiding responsible citizen-owners of gun magazines holding more than 10 rounds.

(f) no effect on revolvers

The evidence surveying the other 82 mass shooting incidents (which occurred outside of California) also suggests § 32310 makes for an uncomfortably poor fit. For example, as noted earlier, some mass shootings involve only revolvers — a style for which there are no magazines. (# 18 Tule River Reservation, Cal. (12/8/12) 5 dead, #29 Port St. John, Fla. (5/15/12) 4 dead; #37 Bay City, Tex. (11/30/11) 4 dead). California’s statute will have no effect on these types of mass shootings.

(g) no effect on shotguns

A number of mass shootings involve a shotgun as the weapon of choice. The vast majority of shotguns likewise cannot be equipped with a magazine holding more than 10 rounds. (# 1 Washington, D.C., Navy Yard (9/16/13) 12 dead; #11 Manchester, Ill. (4/24/13) 5 dead; # 12 Federal Way, Wash. (4/21/13) 4 dead; # 14 Herki-mer, N.Y. (4/13/13) 4 dead; # 30 Gilbert, Ariz. (5/2/12) shotgun & 2 pistols & 6 hand-grenades, 4 dead; .#46 Wagener, S.C. (7/3/11) 4 dead; # 51 Oak Harbor, Ohio (4/16/11) shotgun & .22 rifle, 4 dead;. # 57 Jackson, Ky. (9/10/10) 5 dead; # 64 Chicago, Ill. (4/14/10) 5 dead; #69 Bellville, Tex. (1/16/10) shotgun & handgun 5 dead; # 83 Carthage, N.C. (3/29/09) shotgun & handgun, 8 dead). California’s statute will have little or no effect on these types of mass shootings.

(h)no effect on handguns without large capacity magazines

A large number of mass shooting incidents (40 of 92) were the result of shooters using only pistols or handguns for which there is no indication in the Mayors’ survey that a magazine holding any more than 10 rounds was employed. (#2 Crab Orchard, Tenn. (9/11/13); # 3 Oklahoma City, Okla. (8/14/13); #4 Dallas, Tex. (8/7/13); #5 Clarksburg, W.V. (7/26/13) (original assailants pointed gun at victim who wrested away the handgun he used to kill the assailants and 2 others); # 6 Hialeah, Fla. (7/16/13); #8 Fernley, Nev. (5/13/13); #16 Tulsa, Okla. (1/7/13); #20 Nor-thridge, Cal. (12/2/12); #22 Minneapolis, Minn. (9/27/12); #27 Seattle, Wash. (5/20/12); #31 Oakland, Cal. (4/2/12); #32 Norcross, Ga. (2/20/12); #33 Villa Park, Ill. (1/17/12); # 34 Grapevine, Tex. (12/25/11); # 35 Emington, Ill. (12/16/11); #38 Greensboro, N.C. (11/20/11); #39 Liberty, S.C. (10/14/11); # 40 Seal Beach, Cal. (10/12/11); #41 Laurel, Ind. (9/26/11); #45 Wheatland, Wyo. (7/30/11); #47 Grand Prairie, Tex. (6/23/11); #48 Med-ford, N.Y. (6/9/11); #50 Ammon, Id. (5/11/11); # 53 Minot, N.D. (1/28/11); # 55 Boston, Mass. (9/28/10); # 56 Riviera Beach, Fla. (9/27/10); #62 Manchester, Conn. (8/3/10); # 63 Hialeah, Fla. (6/6/10); # 65 Los Angeles, Cal. (4/3/10); # 67 New Orleans, La. (3/26/10); # 70 Madison, Wis. (12/3/09); # 71 Lakewood, Wash. (11/29/09) (hand gun of slain police officer used to kill other officers); #73 Jupiter,

Fla. (11/26/09); # 74 Pearcy, Ark. (11/12/09); #75 Oklahoma City, Okla. (11/9/09); # 79 Kansas City, Kan. (6/22/09) (2 guns stolen from a police sgt.); #80 Middletown, Md. (4/19/09); # 84 Santa Clara, Cal. (3/29/09); #87 Miami, Fla. (3/15/09); # 90 Cleveland, Ohio (3/5/09); #91 Brockport, N.Y. (2/14/09)). California’s statute will have no effect on these types of mass shootings. .

(i)no effects on unknowns and oddities

For 20 of the remaining 92 recorded incidents, the weapon and ammunition used was simply “unknown.” A few incidents were oddities not easily categorized and not inyolving a magazine holding any more than 10 rounds. In # 4 Dallas, Tex. (8/7/13), the shooter used a handgun and detonated a bomb. New Town, N.D! (# 21) (11/18/12) involved a hunting rifle. Oakland, Cal. (# 31) (4/2/12) involved a pistol and four 10-round magazines which are lawful in every state. Monongalia, W.V. (#42) (9/6/11) involved a .30-30 rifle. Carson City, Nev. (#43) (9/6/11) involved an already-illegal machine gun. Appomattox, Va. (# 68) (1/19/10) involved a rifle used to shoot at responding police officers. California’s statute will have no effect on these types of mass shootings.

(j)conclusions from 80 of 92 cases

Having examined the facts as 'reported by the Mayor’s survey for all of the mass shooting incidents from around the United States over the fairly recent five-year period, it appears that the vast majority of events are identified as not involving either assault-type rifles or large capacity magazines. To reduce or eliminate such incidents requires some means other than § 32310’s dispossession and criminalization approach. The § 32310 approach would have had little or no discernable good effect towards reaching California’s four important safety objectives.

(k) six assault rifle cases with no large capacity magazines

The twelve remaining incidents involved either assault-type rifles or magazines holding more than 10 rounds. These deserve a closer look. In six cases an assault-type rifle was used but there is no data identifying large capacity magazine use. In Albuquerque, N.M. (#15) (1/19/13) the shooter used four guns: two shotguns, a .22 rifle, and an AR-15. In Wagener, S.C. (# 46) (7/3/11), although the shooter owned an AK-47, revolvers and pistols, he chose to use only a shotgun. Put another way, given the choice between using an assault rifle or pistols with large capacity magazines, this mass shooter selected a shotgun as his weapon of choice. In Washington, D.C, (# 66) (3/30/10) there were three gunmen who among them used two pistols and one AK-47. In Osage, Kan. (# 72) (11/28/09) an “assault rifle” was the weapon, Likewise, in Mount Airy, N.C. (# 77) (11/1/09) an “assault rifle” was used. While in Geneva Couhty, Ala. (# 89) (3/10/09) the shooter used three weapons: an AR-15, an SKS, and a .38 pistol. The survey does not mention large capacity magazines being used in any of these six incidents.

(I) remaining 6 cases involve large capacity magazines

The final group of incidents do involve use. of magazines holding more than 10 rounds. Of the 92 mass shooting-incidents over the five years from 2009 to 2013, although millions of magazines holding more than 10 rounds are owned by citizens nationwide, according to the Mayors’ survey, only six incidents involved a magazine holding more than 10 rounds. Two incidents involved a pistol and a magazine holding more than 10 rounds. Four incidents involved an assault rifle or other weapon and a magazine holding more than 10 rounds.

As noted earlier, the Santa Monica, California incident (#7) on June 7, 2013 involved a shooter with an AR-15, a revolver, and three “zip guns.” The shooter carried forty 30-round magazines (probably for use with the AR-15). The AR-15 had no serial number. The shooter was 23-years-old, suggesting that the large capacity magazines he possessed he obtained in violation of California law since he was not old enough to have owned such magazines before California criminalized their purchase or importation. As mentioned earlier, the Mayors’ survey notes that the “assault rifle, high-capacity magazines, and several components to modify the firearms may have been shipped from ' outside California.” (Emphasis added). It is hard to imagine that the shooter, having already evaded California law to acquire large capacity magazines, would have dispossessed himself of the illegally acquired large capacity magazines if the existing law had included the new. Proposition 63 amendments to § 32310.

The next and probably most heinous shooting was the well-publicized Sandy Hook Elementary School shooting in Newtown, Connecticut. (#17) (12/14/12). The shooter carried a variety of weapons and large capacity magazines. Shortly af-terwards, the State of Connecticut made acquisition of large Capacity magazines unlawful. However, unlike in California, continued possession of pre-ban magazines remained lawful if declared and the magazines were permitted to be filled to capacity for home protection and shooting range practice. See State of Connecticut Department of Emergency Services and Public Protection, Division of State Police, Special Licensing & Firearms Unit: FAQS REGARDING P.A. 13-3 As Amended by P.A 13-820 (dated 3/5/14).

The Aurora, Colorado (#24) (7/20/12) movie theater shooting involved the use of a highly unusual 100-round drum magazine on an AR-15, along with a shotgun and two pistols. The criminalization of possession of 100-round ■ drum magazines would seem to be .a reasonable fit as. a means to achieve California’s important safety objectives. On the other hand, it may be the type of weapon that would be protected, by the Second Amendment for militia use under Miller. In any event, California’s § 32310 (c) & (d) would not have prevented the shooter from acquiring and using the shotgun and pistols loaded with smaller 10-round magazines.

The next incident is the Tuscon, Arizona shooting (#54) (1/8/11) in which Chief Judge John Roll, a friend of this Court, was killed. It involved a 33-round magazine for a Glock 19 pistol. Again, a 33-round magazine would seem unusual. But a Glock 19 with its standard magazine would seem to be the quintessential self-defense weapon.

The fifth mass shooting took place in Binghamton, New York (#82) (4/3/09) where two handguns and a 30-rodhd magazine were used in the killing of 14 victims. The survey reports that 98 rounds were fired in the attack. Since 1994, it has been illegal in New York to purchase a magazine holding more than 10 rounds.

The sixth mass shooting occurred in East Oakland, California (#85) (3/21/09) and involved a pistol and a SKS assault-style riñe with a high-capacity magazine. As mentioned earlier, the shooting took place during a time when the shooter, who had a criminal history, was on parole for assault with a deadly weapon.

(m) conclusions from the Mayor’s survey

Some conclusions can be drawn from the Mayor’s survey submitted by the Attorney General. Of the ten mass shooting events that occurred in California, only two involved the use of a magazine holding more than 10 rounds. In view of the large population of California and the five-year time period studied, it appears that the Prop 63 amendments to § 32310 aim to eliminate that which is an incredibly rare danger to public safety. Moreover, based on this preliminary evidentiary record submitted by the Attorney General, § 32310 is a poor fit as a means to eliminate the types pf mass shooting events experienced in California. In other words, § 32310 appears to be a poor fit as a means for the State to achieve its four important objectives.

In East Oakland, the shooter had already demonstrated that he was not a law-abiding responsible gun owner. On the contrary, the Mayors’ survey notes that “[t]he shooter had a lengthy criminal history, including a conviction for armed battery, 'which would have [already] prohibited him from possessing a gun.” It notes that “he was on parole for assault with a deadly weapon at the time of the shooting,” It also notes that one month before the mass shooting incident in which police officers were targeted, “[t]he shooter took part in a home invasion robbery .:. in which a rifle was reported stolen.” Crimi-nálizing possession of a magazine holding any more than 10 rounds, as the amendments to § 32310 do, likely would have had no effect on this perpetrator.

The shooter was,already prohibited from possessing a gun, by virtue of his criminal history. He was already at risk of arrest simply by possessing a gun. Moreover, he was probably subject to a Fourth Amendment waiver and search at any time by state-parole officers, as a result of being on parole for assault with a deadly weapon. It does not take much imagination, to guess that, notwithstanding the amendments to § 32310 (c) <& (d), the shooter in that case would have continued to illegally possess his illegally acquired large capacity magazines for use with his. illegally possessed firearms.

(n) a slippery slope

What is clear from the preliminary evidence presented is that individuals who intend to engage in mass gun violence typically make plans. They use multiple weapons and come loaded with extra ammunition. They pick the place and the time, and do much harm before police can intervene. Persons with violent intentions have used large capacity magazines, machine guns, hand grenades and pipe bombs, notwithstanding laws criminalizing their possession or use. Trying to legislatively outlaw the commonly possessed weapon de jour is like wearing flip flops on a slippery slope. A downhill slide is not hard to foresee.

Tragically, when 30-round magazines are banned, attackers will use 15 or 17-round magazines. If magazines holding more than 10 rounds are banned they will use multiple 10-round magazines. If all semi-automatic weapons are banned they will use shotguns and revolvers. All of these scenarios already occur. Because revolvers and handguns are the quintessential home defense weapon protected by the Second Amendment and specifically approved in Heller, and because the average defensive gun use involves firing 2.2 rounds (according to the State’s experts), states could rationalize a ban on possession of rounds in excess of three per weapon. Criminals intent on violence would then equip themselves with mu