Brownells: Putting Their Money Where Their Mouth Is

A lot of companies talk a great game but rarely do they put their money where their mouth is. Brownells is an exception. Brownells both makes and sells standard capacity magazines. Now they are supporting the fight to overturn California’s ban on these magazines in a big way.

How big?

$50,000 big. They just donated $50,000 to the California Rifle and Pistol Association to help fund the legal bills for Duncan v. Becerra.

From their press release:

GRINNELL, Iowa (September 8, 2020) – Brownells is donating $50,000 to the California Rifle & Pistol Association to help fund the fight to restore freedom and standard-capacity magazines to California gun owners.

In August, a three-judge panel of the United States Court of Appeals Ninth Circuit upheld a previous decision against California’s ban on magazines in the Duncan v. Becerra case. The panel determined a ban on magazines with capacity of over 10 rounds violates the 2nd Amendment rights of Californians.

In an effort to delay striking down California’s draconian magazine ban, the California Attorney General’s office petitioned for an en banc review of panel’s ruling, extending the struggle for California gun owners to regain their Constitutionally-guaranteed rights.

To help see that struggle through to a victorious finish, Brownells is contributing $50,000 for CRPA’s efforts to the cause.

“The California Rifle & Pistol Association Foundation is proud of the partnership with Brownells to fight for the rights of all Americans to exercise their Second Amendment rights,” said CRPA Foundation Director of Development Rick Travis. “Brownells’ generous donation will be used 100% in the fight to see the Duncan v. Becerra case to a successful conclusion in restoring the Second Amendment in California.”

If the rulings against California’s magazine ban are upheld, they could serve as precedent in similar decisions against other similar bans enacted by anti-gun politicians in other states.

CRPA FAQ On Duncan Case

The California Rifle and Pistol Association has put together a six-page FAQ analyzing the 9th Circuit’s decision in Duncan v. Becerra. More importantly, it goes into detail on what is now legal and what still must wait for a court to act.

CRPA was the organizational plaintiff in the case. They were the ones who actually brought the case on behalf of Virginia Duncan and the other individual plaintiffs. The FAQ was put together by attorney Chuck Michel and his team who were the original attorneys on the case.

Whether you are a dealer, a California resident, or merely someone who wants to help out friends behind enemy lines, I think it is important to read this FAQ so that you stay legal.

The FAQ and legal analysis is found here.

Cal DOJ Says Not So Fast

Despite the win in Duncan v. Becerra, neither the District Court nor the 9th Circuit Court of Appeals has lifted the stay of the original ruling. Thus, despite what you might see from a number of dealers of standard capacity magazines, they still cannot be shipped to California at this time.

The Firearms Policy Coalition posted the notice from the California Department of Justice regarding this to Twitter.

In addition to warning both companies and California purchasers regarding the existing stay, it also serves to give notice that California will be appealing Judge Lee’s ruling and asking for an en banc hearing. However, as of this morning, no appeal had been filed.

Duncan V. Becerra: A Win In The 9th Circuit

A three judge panel of the 9th Circuit Court of Appeals handed down a win today for the Second Amendment. In a 2-1 decision, the court found that the California ban on standard capacity magazines failed to pass the two part test and thus contravened the protections of the Second Amendment. They affirmed Judge Roger Benitez’s original ruling in Duncan v. Becerra. His ruling had been partially stayed pending this appeal.

As with all Second Amendment wins in the 9th Circuit, I fully expect that this case will go to an en banc hearing. It will either be granted on the request of one of the other judges sua sponte or on appeal by California. In the meantime, this is a win to be savored.

Below is a synopsis of the court’s 81 page opinion and dissent. The opinion was written by Judge Kenneth Lee and was joined by Judge Consuelo Callahan. Chief Judge Barbara Lynn of the Northern District of Texas, sitting by designation, was the dissenter. Judge Lee, a native of South Korea, was appointed by President Trump to fill the seat left open by the death of liberal icon Judge Stephen Reinhardt.

The panel affirmed the district court’s summary judgment in favor of plaintiffs challenging California Government Code § 31310, which bans possession of large-capacity magazines (“LCMs”) that hold more than ten rounds of ammunition; and held that the ban violated the Second Amendment.

The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation. United states v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)

The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.

Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.

The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.

The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.

Chief District Judge Lynn dissented, and would reverse the district court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit’s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and Cal. Penal Code § 32310 satisfies that standard.

A Partial Loss In California Mag Ban Case

The opinion and ruling by US District Court Judge Roger Benitez in the California magazine ban case – Duncan et al v. Becerra – has garnered lots of attention this past week. His ruling was a permanent injunction on California’s ban on the sale of standard capacity magazines. The result has been that the major online retailers such as Palmetto State Armory, AIM Surplus, Brownells, and Midway USA have been inundated with orders for magazines by California residents.

As you might imagine, the State of California and Attorney General Xavier Becerra are not happy campers. They requested an immediate stay on the ruling while they appeal to the 9th Circuit Court of Appeals. This afternoon, Judge Benitez granted a partial stay after weighing the arguments of both sides and trying to satisfy both sides.

From his order:

In layman’s terms, the State of California and the law enforcement agencies
therein will be free to re-start the enforcement of Calif. Penal Code § 32310 (a) and
(b) which currently prohibits, among other things, any person in the state from
manufacturing, importing into the state, offering for sale, giving, lending, buying,
or receiving a firearm magazine able to hold more than 10 rounds (as defined by
Calif. Penal Code § 16740). This will continue until the appeal proceedings
conclude or the stay is modified or lifted.

At the same time, the State of California and the law enforcement agencies
therein will remain enjoined (or prevented) from enforcing Calif. Penal Code
§ 32310 (c) and (d) which would have criminalized the simple possession of a
firearm magazine able to hold more than 10 rounds and required disposing of such magazines. This will also continue until the appeal proceedings conclude or the
stay is modified or lifted.

Both parties indicate in briefing that persons and business entities in California
may have manufactured, imported, sold, or bought magazines able to hold more
than 10 rounds since the entry of this Court’s injunction on March 29, 2019 and in
reliance on the injunction. Indeed, it is the reason that the Attorney General seeks
urgent relief in the form of a stay pending appeal. Both parties suggest that it is
appropriate to fashion protection for these law-abiding persons.

that the Judgment is stayed in part
pending final resolution of the appeal from the Judgment. The permanent
injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) is
hereby stayed, effective 5:00 p.m., Friday, April 5, 2019.

that the preliminary injunction issued
on June 29, 2017, enjoining enforcement of California Penal Code § 32310 (c) and
(d) shall remain in effect.

that the permanent injunction
enjoining enforcement of California Penal Code § 32310 (a) and (b) shall remain in
effect for those persons and business entities who have manufactured, imported,
sold, or bought magazines able to hold more than 10 rounds between the entry of
this Court’s injunction on March 29, 2019 and 5:00 p.m., Friday, April 5, 2019.

Dated: April 4, 2019

Translated this means that standard capacity magazines can’t be sold, made, imported, or given away after tomorrow, Friday, April 5, 2019 at 5:00pm PDT. However, if you bought a magazine, sold a magazine, or otherwise transferred one into California between March 29th and April 5th at 5:00pm, you are still covered by the permanent injunction against the ban. This means you have until 5:00pm tomorrow to receive it. Or take a quick trip out of state – Nevada, Arizona, etc – and be back by 5:00pm with your new standard capacity magazines.

Moreover, further translating, the preliminary injunction prevents prosecution of those who possessed a standard capacity magazine prior to July 1, 2017. They will not be forced to dispose of their magazines to comply with subsection (d).

You can read the relevant penal code here.

Picture Of The Day

This past Thursday, US District Court Judge Roger T. Benitez issued a preliminary injunction against the enforcement of the State of California’s ban on the possession of standard capacity magazines which was set to go into effect on Saturday, July 1st. Legal scholar Dave Kopel does an excellent job in analyzing Judge Benitez’s decision in the case of Duncan et al v. Becerra.

In celebration of Judge Benitez’s injunction, one California gun owner, Archibald68 on Instagram, was pictured in front of the California State Capitol holding a 30-round magazine while wearing a “banana clip” t-shirt. Gotta love it!

Great pic from @firearms.unknown of @archibald68 celebrating the right to possess common magazines while repping BRD’s Banana Clip tee at the CA State Capitol🙌🏼 ______________________________________ Today, July 1st 2017, would have been the last day for Californians to transfer out of state, sell out of state, or turn over their 10+ mags to law enforcement for destruction without facing criminal charges that would have lead to a fine and suspension of their 2A Right as well seizure of all their firearms, in essence, a backdoor confiscation of weapons. This was via the passage of Prop 63, which was opposed by law enforcement. ______________________________________ U.S. District Judge Roger Benitez, who is based in San Diego, issued a preliminary injunction Thursday, June 29, that found the law was likely unconstitutional because it prevented people from using firearms that employed “whatever common magazine size he or she judges best suits the situation.” The law would have barred people from possessing magazines containing more than 10 cartridges. ______________________________________ BLK RFL DIV called Judge Benitez’s office (619) 446 3589 and, while not personally available, left a message thanking him for protecting the Rights and property of Americans. If you wish to do the same, do it, thank those that stand between us and the statists who wish to criminalize law abiding folks, stand with those who honor their Oath.
A post shared by BLK RFL DIV (@blk.rfl.div) on Jul 1, 2017 at 9:34am PDT