Duncan v. Becerra (366 F. Supp. 3d 1131, 2019)

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DECLARING CALIFORNIA PENAL CODE § 32310 UNCONSTITUTIONAL and ENJOINING ENFORCEMENT

HON. ROGER T. BENITEZ, United States District Judge Individual liberty and freedom are not outmoded concepts. "The judiciary is - and is often the only - protector of individual rights that are at the heart of our democracy." -- Senator Ted Kennedy, Senate Hearing on the Nomination of Robert Bork, 1987.

I. INTRODUCTION

As two masked and armed men broke in, Susan Gonzalez was shot in the chest. She made it back to her bedroom and found her husband's .22 caliber pistol. Wasting the first rounds on warning shots, she then emptied the single pistol at one attacker. Unfortunately, now out of ammunition, she was shot again by the other armed attacker. She was not able to re-load or use a second gun. Both she and her husband were shot twice. Forty-two bullets in all were fired. The gunman fled from the house-but returned. He put his gun to Susan Gonzalez's head and demanded the keys to the couple's truck.

When three armed intruders carrying what look like semi-automatic pistols broke into the home of a single woman at 3:44 a.m., she dialed 911. No answer. Feng Zhu Chen, dressed in pajamas, held a phone in one hand and took up her pistol in the other and began shooting. She fired numerous shots. She had no place to carry an extra magazine and no way to reload because her left hand held the phone with which she was still trying to call 911. After the shooting was over and two of the armed suspects got away and one lay dead, she did get through to the police. The home security camera video is dramatic.

A mother, Melinda Herman, and her nine-year-old twins were at home when an intruder broke in. She and her twins retreated to an upstairs crawl space and hid. Fortunately, she had a .38 caliber revolver. She would need it. The intruder worked his way upstairs, broke through a locked bedroom door and a locked bathroom door, and opened the crawl space door. The family was cornered with no place to run. He stood staring at her and her two children. The mother shot six times, hitting the intruder five times, when she ran out of ammunition. Though injured, the intruder was not incapacitated. Fortunately, he decided to flee.

A. A Need for Self-Defense

In one year in California (2017), a population of 39 million people endured 56,609 robberies, 105,391 aggravated assaults, and 95,942 residential burglaries. There were also 423 homicides in victims' residences. There were no mass shootings in 2017. Nationally, the first study to assess the prevalence of defensive gun use estimated that there are 2.2 to 2.5 million defensive gun uses by civilians each year. Of those, 340,000 to 400,000 defensive gun uses were situations where defenders believed that they had almost certainly saved a life by using the gun. Citizens often use a gun to defend against criminal attack. A Special Report by the U.S. Department of Justice, Bureau of Justice Statistics published in 2013, reported that between 2007 and 2011 "there were 235,700 victimizations where the victim used a firearm to threaten or attack an offender." How many more instances are never reported to, or recorded by, authorities? According to another U.S. Department of Justice, Bureau of Justice Statistics, Special Report, for each year between 2003 and 2007, an estimated 266,560 burglaries occurred during which a person at home became a victim of a violent crime or a "home invasion." "Households composed of single females with children had the highest rate of burglary while someone was at home." Of the burglaries by a stranger where violence occurred, the assailant was armed with a firearm in 73,000 instances annually (on average). During a burglary, rape or sexual assault occurred 6,387 times annually (on average), while a homicide occurred approximately 430 times annually (on average).

Fortunately, the Second Amendment protects a person's right to keep and bear firearms. 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. "As interpreted in recent years by the Supreme Court, the Second Amendment protects 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.' "

Teixeira v. Cty. of Alameda , 873 F.3d 670, 676- 77 (9th Cir. 2017), cert. denied sub nom. Teixeira v. Alameda Cty. , --- U.S. ----, 138 S.Ct. 1988, 201 L.Ed.2d 249 (2018) (quoting District of Columbia v. Heller , 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ). At the core of the Second Amendment is a citizen's right to have in his and her home for self-defense common firearms. Heller , 554 U.S. at 629, 128 S.Ct. 2783. "[O]ur central holding in Heller [is] that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald v. City of Chicago , 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

As evidenced by California's own crime statistics, the need to protect one's self and family from criminals in one's home has not abated no matter how hard they try. Law enforcement cannot protect everyone. "A police force in a free state cannot provide everyone with bodyguards. Indeed, while some think guns cause violent crime, others think that wide-spread possession of guns on balance reduces violent crime. None of these policy arguments on either side affects what the Second Amendment says, that our Constitution protects 'the right of the people to keep and bear Arms.' " Silveira v. Lockyer , 328 F.3d 567, 588 (9th Cir. 2003) (Kleinfeld, J., dissenting from denial of rehearing en banc ). However, California citizens, like United States citizens everywhere, enjoy the right to defend themselves with a firearm, if they so choose. To protect the home and hearth, citizens most often choose a handgun, while some choose rifles or shotguns.

B. Are 10 Rounds Always Enough?

If a law-abiding, responsible citizen in California decides that a handgun or rifle with a magazine larger than 10 rounds is the best choice for defending her hearth and home, may the State deny the choice, declare the magazine a "nuisance," and jail the citizen for the crime of possession? The Attorney General says that is what voters want in hopes of preventing a rare, but horrible, mass shooting. The plaintiffs, who are also citizens and residents of California, say that while the goal of preventing mass shootings is laudable, banning the acquisition and possession of magazines holding more than 10 rounds is an unconstitutional experiment that poorly fits the goal. From a public policy perspective, the choices are difficult and complicated. People may cede liberty to their government in exchange for the promise of safety. Or government may gain compliance from its people by forcibly disarming all. In the United States, the Second Amendment takes the legislative experiment off the table. Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights. "An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity." Silveira , 312 F.3d at 1091.

C. Mass Shooting vs. Common Crimes

When they occur, mass shootings are tragic. Innocent lives are senselessly lost while other lives are scarred forever. Communities are left shaken, frightened, and grieving. The timeline of the tragedy, the events leading up to the shooting, and the repercussions on family and friends after the incident, fill the national media news cycle for days, weeks and years. Who has not heard about the Newtown, Connecticut, mass shooting at Sandy Hook Elementary School, or the one at a high school in Parkland, Florida? But an individual victim gets little, if any, media attention, and the attention he or she gets is local and short-lived. For example, who has heard about the home invasion attack on Melinda Herman and her twin nine-year old daughters in Georgia only one month after the Sandy Hook incident? Who has heard of the attacks on Ms. Zhu Chen or Ms. Gonzalez and her husband? Are the lives of these victims worth any less than those lost in a mass shooting? Would their deaths be any less tragic? Unless there are a lot of individual victims together, the tragedy goes largely unnoticed.

That is why mass shootings can seem to be a common problem, but in fact, are exceedingly rare. At the same time robberies, rapes, and murders of individuals are common, but draw little public notice. As in the year 2017, in 2016 there were numerous robberies, rapes, and murders of individuals in California and no mass shootings. Nevertheless, a gubernatorial candidate was successful in sponsoring a statewide ballot measure (Proposition 63). Californians approved the proposition and added criminalization and dispossession elements to existing law prohibiting a citizen from acquiring and keeping a firearm magazine that is able to hold more than 10 rounds. The State now defends the prohibition on magazines, asserting that mass shootings are an urgent problem and that restricting the size of magazines a citizen may possess is part of the solution. Perhaps it is part of the solution.

Few would say that a 100 or 50-round rifle magazine in the hands of a murderer is a good idea. Yet, the "solution" for preventing a mass shooting exacts a high toll on the everyday freedom of ordinary law-abiding citizens. Many individual robberies, rapes, and shootings are not prevented by the State. Unless a law-abiding individual has a firearm for his or her own defense, the police typically arrive after it is too late. With rigor mortis setting in, they mark and bag the evidence, interview bystanders, and draw a chalk outline on the ground. But the victim, nevertheless, is dead, or raped, or robbed, or traumatized.

As Watson County Sheriff Joe Chapman told CNN about Melinda Herman and her twin nine-year-old daughters in the attic (the third incident described above), "[h]ad it not turned out the way that it did, I would possibly be working a triple homicide, not having a clue as to who it is we're looking for." The Second Amendment protects the would-be American victim's freedom and liberty to take matters into one's own hands and protect one's self and family until help arrives.

D. California Law Makes it a Crime to Have More Than 10 Rounds

For all firearms, California law allows only the acquisition and possession of magazines that hold ten rounds or less. Claiming that the average defensive use of a gun requires firing only 2.2 rounds, the State's voters and legislators have decided that a responsible, law-abiding citizen needs no more than ten rounds to protect one's self, family, home, and property. "No one except trained law enforcement should be able to possess these dangerous ammunition magazines [which hold more than 10 rounds]." Proposition 63; A.G.'s Oppo. to P's Motion for Summary Jgt. , at 20 ("LCMs are not necessary to exercise 'the fundamental right of self defense in the home.' ") (emphasis added); A.G.'s Oppo. to P's Motion for Summary Jgt. , at 21 ("There is simply no study or systematic data to suggest that LCMs are necessary for self-defense.") (emphasis added) (citations omitted). Susan Gonzalez and her husband, the single woman awoken in the night, and the mother home alone with her nine-year-old twin daughters all needed to fire considerably more than 2.2 shots to protect themselves. In fact, Gonzalez and the mom of twins ran out of ammunition.

In other words, a Californian may have a pistol with a 10-round magazine in hopes of fighting off a home invasion robbery. But if that Californian grabs a pistol containing a 17-round magazine, it is now the home-defending victim who commits a new crime. That is because California law declares acquisition and possession of a magazine able to hold more than ten rounds (i.e. , a "large capacity magazine" or "LCM") a crime. See Cal. Penal Code § 32310 ; § 16740. For simple possession of a magazine holding more than 10 rounds, the crime is an infraction under § 32310(c). It is a much more serious crime to acquire a magazine holding more than 10-rounds in California by importing, buying, borrowing, receiving, or manufacturing. These acts may be punished as a misdemeanor or a felony under § 32310(a) ("any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170"). Under the subsection's provision, "or imprisonment pursuant to subdivision (h) of Section 1170," punishment may be either a misdemeanor or a felony. California's gun laws are lengthy and complicated. The statutes concerning magazines alone are not simple. Absent from these provisions is any qualifying language: all forms of possession by ordinary citizens are summarily criminalized. For example, the statutes make no distinction between possessing and storing a 15-round magazine at home (a reasonable non-threatening act) and carrying a rifle with a 100-round magazine while sitting outside a movie theatre or school (a potentially threatening and suspicious act). Each constitutes criminal possession and is prohibited outright. C.f. , Friedman v. City of Highland Park , 784 F.3d 406, 417 (7th Cir. 2015) (Manion, J., dissenting) ("Notably absent from this provision is any qualifying language: all forms of possession are summarily prohibited. Other laws notwithstanding, the ordinance makes no distinction between storing large-capacity magazines in a locked safe at home and carrying a loaded assault rifle while walking down Main Street. Both constitute 'possession' and are prohibited outright."). According to the U.S. Supreme Court's reasoning, acquiring, possessing, or storing a commonly-owned 15-round magazine at home for self-defense is protected at the core of the Second Amendment. Possessing a loaded 100-round rifle and magazine in a crowded public area may not be.

All Californians, like all citizens of the United States, have a fundamental Constitutional right to keep and bear common and dangerous arms. The nation's Founders used arms for self-protection, for the common defense, for hunting food, and as a check against tyranny. Teixeira v. Cty. of Alameda , 873 F.3d 670, 686 (9th Cir. 2017) (en banc) ("[T]he right to bear arms, under both earlier English law and American law at the time the Second Amendment was adopted, was understood to confer a right upon individuals to have and use weapons for the purpose of self-protection, at least in the home."), and ("The British embargo and the colonists' reaction to it suggest ... the Founders were aware of the need to preserve citizen access to firearms in light of the risk that a strong government would use its power to disarm the people. Like the British right to bear arms, the right declared in the Second Amendment of the U.S. Constitution was thus 'meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.' ") (citations omitted).

Today, self-protection is most important. In the future, the common defense may once again be most important. Constitutional rights stand through time holding fast through the ebb and flow of current controversy. Needing a solution to a current law enforcement difficulty cannot be justification for ignoring the Bill of Rights as bad policy. Bad political ideas cannot be stopped by criminalizing bad political speech.Crime waves cannot be broken with warrantless searches and unreasonable seizures. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California's large-capacity magazine law.

II. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs have challenged California's firearm magazine law as being unconstitutional. They now move for summary judgment. The standards for evaluating a motion for summary judgment are well known and have changed little since discussed by the U.S. Supreme Court thirty years ago in a trilogy of cases ( Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). The standards need not be repeated here.

A. The Second Amendment

Plaintiffs contend that there is no genuine dispute that the Second Amendment to the United States Constitution protects the individual right of every law-abiding citizen to acquire, possess, and keep common firearms and their common magazines holding more than 10 rounds - magazines which are typically possessed for lawful purposes. Plaintiffs also contend that the state of California has not carried its burden to demonstrate a reasonable fit between the flat ban on such magazines and its important interests in public safety. Plaintiffs contend that the state's magazine ban thus cannot survive constitutionally-required heightened scrutiny and they are entitled to declaratory and injunctive relief as a matter of law. Plaintiffs are correct.

1. The Supreme Court's Simple Heller Test

In Heller , the U.S. Supreme Court provided a simple Second Amendment test in crystal clear language. It is a test that anyone can understand. The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual "in common use" "for lawful purposes like self-defense." District of Columbia v. Heller , 554 U.S. 570, 624, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; Heller v. District of Columbia ("Heller II") , 670 F.3d 1244, 1271 (2011) (Kavanaugh, J., dissenting) ("In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny."). It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are "yes," the test is over. The hardware is protected.

Millions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense. This is enough to decide that a magazine able to hold more than 10 rounds passes the Heller test and is protected by the Second Amendment. The simple test applies because a magazine is an essential mechanical part of a firearm. The size limit directly impairs one's ability to defend one's self.

Neither magazines, nor rounds of ammunition, nor triggers, nor barrels are specifically mentioned in the Second Amendment. Neither are they mentioned in Heller. But without a right to keep and bear triggers, or barrels, or ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless. Fyock v. City of Sunnyvale , 779 F.3d 991, 998 (9th Cir. 2015) ("[T]o the extent that certain firearms capable of use with a magazine-e.g. , certain semi-automatic handguns-are commonly possessed by law-abiding citizens for lawful purposes, our case law supports the conclusion that there must also be some corollary, albeit not unfettered, right to possess the magazines necessary to render those firearms operable."); Teixeira v. Cty. of Alameda , 873 F.3d 670, 677 (9th Cir. 2017) (en banc) ("We recognized in Jackson that, although the Second Amendment 'does not explicitly protect ammunition, [but] without bullets, the right to bear arms would be meaningless.' Jackson thus held that 'the right to possess firearms for protection implies a corresponding right' to obtain the bullets necessary to use them.") (citations omitted); see also Ass'n of N.J. Rifle & Pistol Clubs v. A.G. N.J. , 910 F.3d 106, 116 (3rd Cir. 2018) ("The law challenged here regulates magazines, and so the question is whether a magazine is an arm under the Second Amendment. The answer is yes. A magazine is a device that holds cartridges or ammunition. Regulations that eliminate 'a person's ability to obtain or use ammunition could thereby make it impossible to use firearms for their core purpose.' Because magazines feed ammunition into certain guns, and ammunition is necessary for such a gun to function as intended, magazines are 'arms' within the meaning of the Second Amendment.") (citations omitted). Consequently, the same analytical approach ought to be applied to both firearms and the ammunition magazines designed to make firearms function.

Under the simple test of Heller , California's § 32310 directly infringes Second Amendment rights. It directly infringes by broadly prohibiting common firearms and their common magazines holding more than 10 rounds, because they are not unusual and are commonly used by responsible, law-abiding citizens for lawful purposes such as self-defense. And "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) (commenting on what Heller 's test requires). Although it may be argued that a 100-round, or a 50-round, or possibly even a 30-round magazine may not pass the Heller hardware test, because they are "unusual," the State has proffered no credible evidence that would support such a finding. Using the simple Heller test, a decision about firearm hardware regulations could end right here.

This is not to say the simple Heller test will apply to non-hardware firearm regulations such as gun store zoning laws, or firearm serial number requirements. Cf. Ass'n of N.J. Rifle & Pistol Clubs v. A.G. N.J. , 910 F.3d 106, 127 (3rd Cir. 2018) (Bibas, J., dissenting) ("Not every gun law impairs self-defense. Our precedent applies intermediate scrutiny to laws that do not affect weapons' function, like serial-number requirements. But for laws that do impair self-defense, strict scrutiny is apt.").

2. Commonality

Magazines holding more than 10 rounds are used for self-defense by law-abiding citizens. And they are common. Lawful in at least 41 states and under federal law, these magazines number in the millions. Plaintiff's Exh. 1 (James Curcuruto Report), at 3 ("There are at least one hundred million magazines of a capacity of more than ten rounds in possession of American citizens, commonly used for various lawful purposes including, but not limited to, recreational and competitive target shooting, home defense, collecting and hunting.") (emphasis added); Plaintiff's Exh. 2 (Stephen Helsley Report), at 5 ("The result of almost four decades of sales to law enforcement and civilian clients is millions of semiautomatic pistols with a magazine capacity of more than ten rounds and likely multiple millions of magazines for them.") (emphasis added); Fyock , 779 F.3d at 998 ("[W]e cannot say that the district court abused its discretion by inferring from the evidence of record that, at a minimum, magazines are in common use. And, to the extent that certain firearms capable of use with a magazine - e.g., certain semi-automatic handguns - are commonly possessed by law-abiding citizens for lawful purposes, our case law supports the conclusion that there must also be some corollary, albeit not unfettered, right to possess the magazines necessary to render those firearms operable."); Ass'n of N.J. Rifle & Pistol Clubs , 910 F.3d at 116 ("The record shows that millions of magazines are owned, often come factory standard with semi-automatic weapons, are typically possessed by law-abiding citizens for hunting, pest-control, and occasionally self-defense and there is no longstanding history of LCM regulation.") (citations omitted) (emphasis added); 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); Heller v. District of Columbia , 670 F.3d 1244, 1261 (D.C. Cir. 2011) ("We think it clear enough in the record that ... magazines holding more than ten rounds are indeed in 'common use'.... As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but , if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten .") (emphasis added); cf. Hollis v. Lynch , 827 F.3d 436, 449 (5th Cir. 2016) (noting imprecision of the term "common" by applying the Supreme Court test in Caetano of 200,000 stun guns owned and legal in 45 states being "common"); Wiese v. Becerra , 306 F.Supp.3d 1190, 1195 n.3 (E.D. Cal. 2018) ("[T]he court holds that California's large capacity magazine ban burdens conduct protected by the Second Amendment because these magazines are commonly possessed by law-abiding citizens for lawful purposes ...."); Ass'n of N.J. Rifle & Pistol Clubs v. Grewal , 2018 WL 4688345, at *10, 2018 U.S. Dist. LEXIS 167698, at *32-33 (D. N.J. Sep. 28, 2018) ("[T]he Court is satisfied, based on the record presented, that magazines holding more than ten rounds are in common use and, therefore, entitled to Second Amendment protection."); compare United States v. McCartney , 357 F. App'x 73, 76 (9th Cir. 2009) ("Silencers, grenades, and directional mines are not 'typically possessed by law-abiding citizens for lawful purposes,' and are less common than either short-barreled shotguns or machine guns. The weapons involved in this case therefore are not protected by the Second Amendment.") (citations omitted).

The Attorney General argues, even so, that it is permissible to ban common handguns with common magazines holding more than 10 rounds because the possession of firearms with other smaller magazines is allowed. But Heller says, "[i]t is no answer to say ... that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e. , long guns) is allowed."

554 U.S. at 629, 128 S.Ct. 2783 ; Caetano v. Massachusetts , --- U.S. ----, 136 S.Ct. 1027, 1033, 194 L.Ed.2d 99 (2016) (Alito, J., and Thomas, J., concurring) ("But the right to bear other weapons is 'no answer' to a ban on the possession of protected arms."). Heller says, "It is enough ... that the American people have considered the handgun to be the quintessential self-defense weapon." Id. California's complete prohibition of common handguns with commonly-sized magazines able to hold more than 10 rounds is invalid. "A weapon may not be banned unless it is both dangerous and unusual." Caetano v. Massachusetts , --- U.S. ----, 136 S.Ct. 1027, 1031, 194 L.Ed.2d 99 (2016) (Alito, J., and Thomas, J., concurring) (emphasis in original).

To the extent that magazines holding more than 10 rounds may be less common within California, it would likely be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. Saying that large capacity 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 that it isn't commonly used. A law's existence can't be the source of its own constitutional validity.").

Since the 1980s, one of the most popular handguns in America has been the Glock 17 pistol, which is designed for, and typically sold with, a 17-round magazine. One of the most popular youth rifles in America over the last 60 years has been the Ruger 10/22. Six million have been sold since it was introduced in 1964. It is designed to use magazines manufactured by Ruger in a variety of sizes: 10-round, 15-round, and 25-round. Over the last three decades, one of the most popular civilian rifles in America is the much maligned AR-15 style rifle. Manufactured with various characteristics by numerous companies, it is estimated that more than five million have been bought since the 1980s. These rifles are typically sold with 30-round magazines. These commonly-owned guns with commonly-sized magazines are protected by the Second Amendment and Heller 's simple test for responsible, law-abiding citizens to use for target practice, hunting, and defense.

3. Lethality is Not the Test

Some say that the use of "large capacity magazines" increases the lethality of gun violence. They point out that when large capacity magazines are used in mass shootings, more shots are fired, more people are wounded, and more wounds are fatal than in other mass shootings. That may or may not be true. Certainly, a gun when abused is lethal. A gun holding more than 10 rounds is lethal to more people than a gun holding less than 10 rounds, but it is not constitutionally decisive. Nothing in the Second Amendment makes lethality a factor to consider because a gun's lethality, or dangerousness, is assumed. The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous. "If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous." Caetano v. Massachusetts , --- U.S. ----, 136 S.Ct. 1027, 1031, 194 L.Ed.2d 99 (2016) (Alito, J. and Thomas, J., concurring); Maloney v. Singas , 351 F.Supp.3d 222, 234-38 (E.D.N.Y. 2018) (striking down 1974 ban on possession of dangerous nunchaku in violation of the Second Amendment and quoting Caetano ). "[T]he relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes." Id.

California law presently permits the lethality of a gun with a 10-round magazine. In other words, a gun with an 11-round magazine or a 15-round magazine is apparently too lethal to be possessed by a law-abiding citizen. A gun with a 10-round magazine is not. Missing is a constitutionally-permissible standard for testing acceptable lethality. The Attorney General offers no objective standard. Heller sets out a commonality standard that can be applied to magazine hardware: is the size of the magazine "common"? If so, the size is constitutionally-protected.

If the "too lethal" standard is followed to its logical conclusion, the government may dictate in the future that a magazine of eight rounds is too lethal. And after that, it may dictate that a gun with a magazine holding three rounds is too lethal since a person usually fires only 2.2 rounds in self-defense. This stepped-down approach may continue until the time comes when government declares that only guns holding a single round are sufficiently lacking in lethality that they are both "safe" to possess and powerful enough to provide a means of self-defense.

As a matter of public policy, people can debate who makes the decision about how much lethality a citizen can possess. As policy, the State says a law-abiding, responsible person needs only 10 rounds. If you judge for yourself that you will need more than 10 rounds, however, the crime is yours. And, too bad if you complied with the law but needed 11 rounds to stop an attacker, or a group of attackers, or a mob. Now, you are dead. By living a law-abiding, responsible life, you have just become another "gun violence" statistic. And your statistic may be used to justify further restrictions on gun lethality for future law-abiding citizens.

4. Conclusion Under Heller Test

In Heller , the Supreme Court held that the Second Amendment protects an individual right to possess a "lawful firearm in the home operable for the purpose of immediate self-defense.' " Pena v. Lindley , 898 F.3d 969, 975 (9th Cir. 2018), pet'n for cert. filed (1/3/19) (quoting Heller , 554 U.S. at 635, 128 S.Ct. 2783 ). "The Court also wrote that the amendment 'surely elevates above all other interests the right of law-abiding , responsible citizens to use arms in defense of hearth and home.' " United States v. Torres , 911 F.3d 1253, 1259 (9th Cir. 2019) (quoting Heller , 554 U.S. at 635, 128 S.Ct. 2783 ).

California's law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny. Jackson v. City & Cty. of S.F. , 746 F.3d 953, 961 (9th Cir. 2014), cert. denied , --- U.S. ----, 135 S.Ct. 2799, 192 L.Ed.2d 865 (2015) ("A law that imposes such a severe restriction on the core right of self-defense that it 'amounts to a destruction of the Second Amendment right,' is unconstitutional under any level of scrutiny.") (citing Heller , 554 U.S. at 629, 128 S.Ct. 2783 ); Silvester v. Harris , 843 F.3d 816, 821 (9th Cir. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 945, 200 L.Ed.2d 293 (2018) ("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.") (citation omitted). The criminalization of a citizen's acquisition and possession of magazines able to hold more than 10 rounds hits directly at the core of the right of self-defense in the home. It is a complete ban on acquisition. It is a complete ban on possession. It is a ban applicable to all ordinary law-abiding responsible citizens. It is a ban on possession that applies inside a home and outside a home.

California's ban goes farther than did the District of Columbia's ordinance in Heller. With respect to long guns, in the Heller case, while a citizen was required to keep his or her self-defense firearm inoperable, he or she could still possess the rifle - yet it failed the simple Heller test. Jackson v. City & Cty. of San Francisco , --- U.S. ----, 135 S.Ct. 2799, 192 L.Ed.2d 865 (2015) (Thomas, J., dissenting from denial of certiorari) ("Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it "made it impossible for citizens to use their firearms for the core lawful purpose of self-defense.") (citing Heller ). A government regulation that allowed a person to acquire an arm and allowed a person to possess the arm still failed the Heller test. California's law, which neither allows acquisition, nor possession, nor operation, in the home for self-defense must also fail the Heller test.

The California ban leaves no room for an ordinary citizen to acquire, keep, or bear a larger capacity magazine for self-defense. There are no permitted alternative means to possess a firearm holding more than 10 rounds for self-defense, regardless of the threat. Compare, e.g., Wilson v. Lynch , 835 F.3d 1083, 1093 (9th Cir. 2016) ( 18 U.S.C. § 922(d)(3) prohibition on selling firearm to marijuana card holder was not severe burden on core Second Amendment rights because the bar applied to "only the sale of firearms to Wilson - not her possession of firearms") (emphasis added); United States v. Chovan , 735 F.3d 1127, 1138 (9th Cir. 2013) (describing Heller II 's reasoning that the District of Columbia's gun registration requirements were not a severe burden because they do not prevent an individual from possessing a firearm in his home or elsewhere). Simply put, § 32310's ban on common magazines able to hold more than 10 rounds flunks the simple Heller test. Because it flunks the Heller test, there is no need to apply some lower level of scrutiny. Cf. Wrenn v. D.C. , 864 F.3d 650, 666 (D.C. Cir. 2017) (" Heller I 's categorical approach is appropriate here even though our previous cases have always applied tiers of scrutiny to gun laws.").

In addition to their usefulness for self-defense in the home, of course, larger capacity magazines are also lawful arms from home with which militia members would report for duty. Consequently, possession of a larger capacity magazine is also categorically protected by the Second Amendment under United States v. Miller , 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). " Miller and Heller recognized that militia members traditionally reported for duty carrying 'the sorts of lawful weapons that they possessed at home,' and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon's suitability for military use.' " Caetano v. Massachusetts , --- U.S. ----, 136 S.Ct. 1027, 1032, 194 L.Ed.2d 99 (2016) (Alito, J., concurring) (citations omitted).

B. The Historical Prohibitions Exception

The State argues that the Heller test is a non-issue because the Heller test does not apply to historically-accepted prohibitions on Second Amendment rights. Large capacity magazines have been the subject of regulations since the 1930s according to the State. Based on this view of history, the State asserts that magazine capacity regulations are historically accepted laws beyond the reach of the Second Amendment. If its historical research is accurate, the State would have an argument. "At the first step of the inquiry, 'determining the scope of the Second Amendment's protections requires a textual and historical analysis of the amendment.' " Teixeira v. Cty. of Alameda , 873 F.3d 670, 682 (9th Cir. 2017), cert. denied sub nom. Teixeira v. Alameda Cty., Cal. , --- U.S. ----, 138 S.Ct. 1988, 201 L.Ed.2d 249 (2018) (citation omitted). Courts ask whether the challenged law "falls within a 'well-defined and narrowly limited' category of prohibitions 'that have been historically unprotected,' " Jackson v. City & Cty. of S.F. , 746 F.3d 953, 960 (9th Cir. 2014)cert. denied , --- U.S. ----, 135 S.Ct. 2799, 192 L.Ed.2d 865 (2015) (citations omitted). "To determine whether a challenged law falls outside the historical scope of the Second Amendment, we 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).

History shows, however, restrictions on the possession of firearm magazines of any size have no historical pedigree. To begin with the regulation at issue, Cal. Penal Code § 32310, applies to detachable magazines. The detachable magazine was invented in the late 19th Century. "In 1879, Remington introduced the first 'modern' detachable rifle magazine. In the 1890s, semiautomatic pistols with detachable magazines followed. During WWI, detachable magazines with capacities of 25 to 32-rounds were introduced." Plaintiff's Exh. 2 (Stephen Helsley Report), at 4.

The oldest statute limiting the permissible size of a detachable firearm magazine, on the other hand, is quite young. In 1990, New Jersey introduced the first ban on detachable magazines, banning magazines holding more than 15 rounds. N.J.S. 2C:39 (1990). Eight other states eventually followed. The federal government first regulated detachable magazines in 1994. The federal statute addressed magazines holding more than 10 rounds but lapsed in 2004 and has not been replaced.

To sum up, then, while detachable firearm magazines have been common for a century, government regulation of the size of a magazine is a recent phenomenon and still unregulated in four-fifths of the states. The record is empty of the persuasive historical evidence needed to place a magazine ban outside the ambit of the Second Amendment. Thus, it can be seen that California's prohibition on detachable ammunition magazines larger than 10 rounds is a type of prohibition that has not been historically accommodated by the Second Amendment.

Faced with a dearth of magazine capacity restrictions older than 1990, the Attorney General pivots and tries a different route. He argues that the historical prohibition question is not one of detachable magazine size, but instead is a question of firearm "firing-capacity." With this change of terms and shift of direction, the Attorney General contends that firearm firing-capacity restrictions have been subject to longstanding regulation dating back to the 1920s. Yet, even his new focus falters under a close look at the historical record.

First, firearms with a firing-capacity of more than 10 rounds existed long before the 1920s. Plaintiff's Exh. 2 (Stephen Helsley Report), at 4 ("Firearms with a capacity exceeding10-rounds date to the 'dawn of firearms.' In the late-l5th Century, Leonardo Da Vinci designed a 33-shot weapon. In the late 17th Century, Michele Lorenzoni designed a practical repeating flintlock rifle .... Perhaps the most famous rifle in American history is the one used by Lewis and Clark on their 'Corps of Discovery" expedition between 1803 and 1806-the magazine for which held twenty-two .46 caliber balls. Rifles with fixed magazines holding 15-rounds were widely used in the American Civil War. During that same period, revolvers with a capacity of 20-rounds were available but enjoyed limited popularity because they were so ungainly."). Yet, despite the existence of arms with large firing-capacity during the time of the adoption of the Second Amendment, more than a century passed before a firing-capacity law was passed.

It is interesting to note that during the Nation's founding era, states enacted regulations for the formation and maintenance of citizen militias. Three such statutes are described in United States v. Miller , 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Rather than restricting firing capacity, they required firing capacity. These statutes required citizens to equip themselves with arms and a minimum quantity of ammunition for those arms. None placed an upper limit of 10-rounds, as § 32310 does. Far from it. Each imposed a floor of at least 20-rounds. Id. at 180-83, 59 S.Ct. 816 (Massachusetts law of 1649 required carrying "twenty bullets," while New York 1786 law required "a Box therein to contain no less than Twenty-four Cartridges," and Virginia law of 1785 required a cartridge box and "four pounds of lead, including twenty blind cartridges"). In 1776, Paul Revere's Minutemen (a special group of the Massachusetts militia) were required to have ready 30 bullets and gunpowder. These early American citizen militia laws suggest that, contrary to the idea of a firing-capacity upper limit on the number of rounds a citizen was permitted to keep with one's arms, there was an obligation that citizens would have at least 20 rounds available for immediate use. Simply put, there were no upper limits; there were floors and the floors were well above 10 rounds.

The Attorney General makes no mention of the founding-era militia firing-capacity minimum requirements. Instead he focuses on a handful of Thompson machine gun-era statutes. In 1927, Michigan passed a restriction on firearms with a firing-capacity over 16 rounds. Rhode Island restricted arms with a firing-capacity over 12 rounds. Ohio began licensing firearms with a firing-capacity over 18 rounds in 1933. All were repealed. The District of Columbia first restricted firearms with a firing-capacity of 12 or more rounds in 1932. None of these laws set the limit as low as ten.

The Attorney General names five additional states that enacted firing-capacity restrictions in the 1930s with capacity limits less than 10 rounds. But he is not entirely accurate. His first example is not an example, at all. For his first example, he says that, "[i]n 1933, South Dakota banned any 'weapon from which more than five shots or bullets may be rapidly or automatically, or semi-automatically discharged from a magazine [by a single function of the firing device].' " Def's Oppo. (4/9/18) at 4 (emphasis in original). Actually, this was not a ban. This was South Dakota's definition of a machine gun. S.D. Ch. 206 (S.B. 165) Enacting Uniform Machine Gun Act , § 1 (1933), Exh. A to Def.'s Request for Judicial Notice (filed 4/9/18) (" 'Machine Gun' applies to and includes a weapon of any description by whatever name known, loaded or unloaded, from which more than five shots or bullets may be rapidly, or automatically, or semi-automatically discharged from a magazine, by a single function of the firing device."). In fact, the statute did not ban machine guns. The statute did not criminalize mere possession (except by a felon or by an unnaturalized foreign-born person). Unlike Cal. Penal Code § 32310, the South Dakota statute criminalized possession or use of a machine gun only "for offensive or aggressive purpose," (Ch. 206 § 3), and added a harsh penalty for use during a crime of violence. Ch. 206 § 2. Specifically excepted from the regulation was possession of a machine gun for defensive purposes. Ch. 206 § 6(3) ("Nothing contained in this act shall prohibit or interfere with the possession of a machine gun ... for a purpose manifestly not aggressive or offensive."). The 1933 South Dakota statute protected a law-abiding citizen's right to possess a machine gun with a firing-capacity over five rounds for self-defense and defense of home and family and any other purpose not manifestly aggressive or offensive. California's § 32310, in contrast, criminalizes for all reasons possession of a magazine holding more than 10 rounds. So much for the first example.

The Attorney General's second example of a longstanding firing-capacity prohibition is a Virginia ban enacted in 1934. However, like the first South Dakota example, the second example is not an example, at all. The Attorney General describes the law as a ban on firearms that discharge seven rounds rapidly. It is not ban. It also defines "machine gun." It criminalizes the offensive/aggressive possession of a machine gun and it imposes a death penalty for possessing/using a machine gun in the perpetration of a crime of violence. However, most importantly, like the 1933 South Dakota statute, the 1934 Virginia statute protected a law-abiding citizen's right to possess a machine gun for self-defense and defense of home and family and any other purpose not manifestly aggressive or offensive. As discussed above, California's § 32310, in criminalizing possession of magazines holding more than 10 rounds, makes no distinction between use for an offensive purpose and use for a defensive purpose. So much for the second example.

The Attorney General's final three examples are state machine gun bans. The first cited is an Illinois enactment (in 1931) described as, "An Act to Regulate the Sale, Possession and Transportation of Machine Guns." Ex. C to Def.'s Request for Judicial Notice (filed 4/9/18). Louisiana enacted (in 1932) Act No. 80, the second cited, which likewise was passed "to regulate the sale, possession and transportation of machine guns." Ex. D to Def.'s Request for Judicial Notice (filed 4/9/18). The third cited example is like the first two. It is an Act passed by the South Carolina legislature in 1934 titled, An Act Regulating the Use and Possession of Machine Guns. Ex. E to Def.'s Request for Judicial Notice (filed 4/9/18). These three statutes are examples of machine gun bans that are prohibited because of their ability to continuously fire rounds with a single trigger pull, rather than their overall firing-capacity.

Machine guns have been subject to federal regulation since the enactment of the National Firearms Act of 1934. See Sonzinsky v. United States , 300 U.S. 506, 511-12, 57 S.Ct. 554, 81 L.Ed. 772 (1937) ("The term 'firearm' is defined by § 1 [of the National Firearms Act] as meaning a shotgun or a rifle having a barrel less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive, if capable of being concealed on the person, or a machine gun ....") (emphasis added). Since machine guns are not typically possessed by law-abiding citizens for lawful purposes, they are not protected by the Second Amendment. Heller , 554 U.S. at 625, 128 S.Ct. 2783 ; Friedman v. City of Highland Park , 784 F.3d 406, 408 (7th Cir. 2015) ( Heller observed, "state militias, when called to service, often had asked members to come armed with the sort of weapons that were 'in common use at the time' and it thought these kinds of weapons (which have changed over the years) are protected by the Second Amendment in private hands, while military-grade weapons (the sort that would be in a militia's armory), such as machine guns, and weapons especially attractive to criminals, such as short-barreled shotguns, are not."). Because machine guns, like grenades and shoulder-fired rocket launchers, are not commonly possessed by law-abiding citizens for lawful purposes, they are specific arms that fall outside the safe harbor of the Second Amendment. Consequently, these machine gun statutes cited by the Attorney General do not stand as proof of long-standing prohibitions on the firing-capacity of Second Amendment-protected commonly possessed firearms.

To reiterate, the earliest regulation of a detachable ammunition magazine limit occurred in New Jersey in 1990 and limited the number of rounds to a maximum of 15. The earliest federal restriction on a detachable magazine was enacted in 1994, limited the maximum number of rounds to 10, and expired after ten years. As to the Attorney General's alternate argument about "firing-capacity," the earliest firing-capacity regulation appeared in the 1920s and 1930s in three states (Michigan, Rhode Island, and Ohio) and affected firearms able to fire more than 18, 16, or 12 rounds, depending on the state. No regulation on "firing-capacity" set a limit as low as California's 10-round limit. Each was repealed and thus not longstanding. Two more states (North Dakota and Virginia) defined a machine gun. Interestingly, while penalizing machine gun use when purposed for aggressive or offensive use, both states also protected citizen machine gun possession for defensive use or any other use that was not manifestly aggressive or offensive. Three other states (Illinois, Louisiana, and South Carolina) simply defined and banned machine guns altogether. The District of Columbia appears to be the single jurisdiction where a firing-capacity restriction has been in place since the 1930s. Even there, the limit was not as low as California's limit of 10 rounds.

On this record, there is no longstanding historically-accepted prohibition on detachable magazines of any capacity. Ass'n of N.J. Rifle & Pistol Clubs v. A.G. N.J. , 910 F.3d 106, n.18 (3rd Cir. 2018) ("LCMs were not regulated until the 1920s, but most of those laws were invalidated by the 1970s. The federal LCM ban was enacted in 1994, but it expired in 2004. While a lack of longstanding history does not mean that the regulation is unlawful, the lack of such a history deprives us of reliance on Heller 's presumption that such regulation is lawful.") (citations omitted); Heller v. D.C. , 670 F.3d 1244, 1260 (D.C. Cir. 2011) ("We are not aware of evidence that prohibitions on either semi-automatic rifles or large-capacity magazines are longstanding and thereby deserving of a presumption of validity.").

Moreover, there is no longstanding historically-accepted prohibition on firearms according to their "firing-capacity" except in the case of automatic fire machine guns. On the other hand, there is an indication that founding-era state regulations, rather than restricting ammunition possession, mandated citizens of militia age to equip themselves with ready ammunition in amounts of at least 20 rounds.

C. The Heightened Scrutiny Test

1. Failing the Simple Heller Test

Section 32310 runs afoul of the Second Amendment under the simple Heller test. It fails the Heller test because it criminalizes a law-abiding citizen's possession of a common magazine that is used for lawful purposes and prohibits its use for self-defense in and around the home. It strikes at the core of the inalienable Constitutional right and disenfranchises approximately 39 million state residents.

This conclusion should not be considered groundbreaking. It is simply a straightforward application of constitutional law to an experimental governmental overreach that goes far beyond traditional boundaries of reasonable gun regulation. That § 32310 was not challenged earlier is due in part to the Ninth Circuit's pre- Heller understanding that an individual lacked Second Amendment rights and thus lacked Article III standing to challenge gun regulations. See Silveira v. Lockyer , 312 F.3d 1052, 1066-67 (9th Cir. 2002), as amended (Jan. 27, 2003) ("Because we hold that the Second Amendment does not provide an individual right to own or possess guns or other firearms, plaintiffs lack standing to challenge the [California Assault Weapons Control Act]."). That was the state of the law when California passed its first iteration of § 32310 with a grandfather clause now called a "loophole" permitting citizens to keep and possess magazines able to hold more than 10 rounds. The lack of an earlier constitutional challenge was also due to the recency of the Supreme Court's decision that the Second Amendment applies to the states. See McDonald v. City of Chicago , 561 U.S. 742, 784-85, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ("Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective ... that guarantee is fully binding on the States ...."). In other words, when California began experimenting with its larger-capacity magazine ban less than twenty years ago, it appeared that the Second Amendment conferred no rights on individual citizens and did not apply to the states, and that an individual lacked Article III standing in federal court to challenge the ban. During that time, California passed more and more gun regulations, constricting individual rights further and further, to the point where state undercover agents surveil California residents attending out-of-state gun shows, obtain search warrants for their homes, and prosecute those returning with a few thirty-round magazines. See e.g., People v. Verches , 2017 WL 1880968 (Cal. Ct. App. May 9, 2017) (California resident convicted of marijuana possession and importing three large-capacity magazines purchased at a Reno, Nevada gun show and placed on three years formal felony probation).

The magazine ban arbitrarily selects 10 rounds as the magazine capacity over which possession is unlawful. The magazine ban admits no exceptions, beyond those for law enforcement officers, armored truck guards, and movie stars. The ban does not distinguish between citizens living in densely populated areas and sparsely populated areas of the state. The ban does not distinguish between citizens who have already experienced home invasion robberies, are currently threatened by neighborhood burglary activity, and those who have never been threatened. The ban does not distinguish between the senior citizen, the single parent, and the troubled and angry high school drop-out. Most importantly, the ban does not distinguish between possession in and around one's home, and possession in or around outdoor concerts, baseball fields, or school yards. The ban on magazines that hold more than 10 rounds amounts to a prohibition on an entire class of "arms" that is overwhelmingly chosen by American citizens for the lawful purpose of self-defense. The prohibition extends to one's home where the need to defend self, family, and property is most acute. And like the ban struck down in Heller , the California ban threatens citizens, not with a minor fine, but a substantial criminal penalty. Heller , 554 U.S. at 634, 128 S.Ct. 2783 ("The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. See D. C. Code § 7-2507.06."). "If a law burdens conduct protected by the Second Amendment ... Heller mandates some level of heightened scrutiny." Bauer v. Becerra , 858 F.3d 1216, 1221 (9th Cir. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 982, 200 L.Ed.2d 249 (2018). Under any level of heightened scrutiny, the ban fails constitutional muster.

2. The Tripartite Binary Test with a Sliding Scale and a Reasonable Fit

Beyond the simple Heller test, for a Second Amendment question, 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." It is an overly complex analysis that people of ordinary intelligence cannot be expected to understand. It is the wrong standard. But the statute fails anyhow.

a. burden & scrutiny

First, a court must evaluate the burden and then apply the correct scrutiny. United States v. Torres , 911 F.3d 1253, 1258 (9th Cir. 2019) ; 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), cert. denied , --- U.S. ----, 138 S.Ct. 982, 200 L.Ed.2d 249 (2018) (quoting Jackson , 746 F.3d at 960 ). As discussed, § 32310 burdens conduct protected by the Second Amendment.

b. 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 fails 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 . As discussed, neither is there any evidence that magazine capacity restrictions have a historical pedigree.

c. 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 Secon