Prop. 63 and the 2nd Amendment: The facts

On March 14, the Colleges of Law will host a debate on whether Proposition 63’s complete ban on magazines with a capacity of more than ten rounds violates the Second Amendment. A microcosm of a much larger national issue, California’s proposition has energized people on all sides of the debate over the individual right to own firearms.

What is Proposition 63?

In November 2016, California voters passed the thirty-four-page Proposition 63 ballot initiative, called the “Safety for All Act,” by wide margins. Generally speaking, the proposition touches on several areas:

• Requirements/licenses for purchasing ammunition
• Additional bans on large-capacity magazines
• Court removal of firearms
• Prohibiting out-of-state purchases
• Reporting theft of ammunition
• Increasing the penalty for theft

Although Prop 63’s reach is extensive, the primary cause of debate revolves around the Proposition’s complete ban on magazines with a capacity of more than ten rounds (large-capacity magazines). Although California had already banned large-capacity magazines for most individuals, anyone who owned them prior to the year 2000 were exempted. Proposition 63 has removed that provision.

After July 1, 2017, any person found in possession of the prohibited ammunition in California is subject to a fine, imprisonment, or both.

Is Proposition 63 Constitutional?

While many of the proposition’s provisions are uncontroversial, several sections pose constitutional questions. Although they face an uphill battle, opponents are poised to file a lawsuit challenging the proposition. The Second, Fourth, and Seventh Circuit Courts of Appeals have all reviewed laws similar to Proposition 63 and found them constitutional. But these decisions are not without vigorous dissent, suggesting that the question is not easily resolved.

In a case still pending in the Ninth Circuit—where California is located—the court seems inclined to uphold a Sunnyvale city ordinance banning the same ammunition identified in Proposition 63. While the court declined to decide whether the ordinance violated the Second Amendment—instead sending it back to the trial court for further fact development—its opinion signaled support for the ban.

The Second Amendment has long been a flashpoint in American politics. Federal and state efforts to impose more stringent gun regulations face fierce opposition. The debates are heated, with both sides relying on fear to stoke support for their position.

Legislation restricting access to guns or ammunition is often proposed in the wake of national tragedies. Proponents frame the debate as one about public safety and prevention. Opponents counter that these laws are an example of government overreach and an attempt to infringe on the constitutional rights of law-abiding citizens.

Proposition 63 and The Second Amendment

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.” The amendment’s meaning is not yet settled, although the Supreme Court of the United States has provided some guidance.

The Court has held that the amendment guarantees the individual right to possess and carry firearms, including those that were not in existence at the time of the founding. According to the Court, the amendment is rooted in the right to self-preservation and self-defense.

But the Court has also said that the right is not unlimited, and that it is subject to reasonable limitations. According to the Court, the Second Amendment does not protect “weapons not ordinarily possessed by law-abiding citizens for lawful purposes.” Under this guise, the Court has upheld laws prohibiting machine guns and short-barreled shotguns.

Likewise, it has determined that laws prohibiting possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, are constitutional.

What is considered a “reasonable” firearm restriction is at the heart of this debate. As with many constitutional rights, the Court is implicitly balancing the individual’s right—in this case, to “bear arms”—against the government’s stated interest—in this case, to protect the public.

It is a difficult balance to strike.

Arguments For Proposition 63

Proponents of Proposition 63 argue that large-capacity magazines enable shooters to inflict mass casualties—depriving victims and law enforcement officers the opportunity to escape or overwhelm the shooters while they reload their weapons.

They point to shootings in Newtown, Conn., Aurora, Colo., San Bernardino, Calif., and the Pulse nightclub in Orlando, Fla., as evidence of the significant public safety risk inherent in large capacity magazines. Moreover, they note citizens can still possess and use magazines with fewer than 10 rounds, leaving intact the right to self-defense.

Arguments Against Proposition 63

Opponents of Proposition 63 argue that those national tragedies would not have been prevented by a complete ban. They point out that magazines with a capacity of more than 10 rounds will still be produced and sold within the United States, and that individuals intent on doing harm will still be able to obtain them.

Instead, they argue the ban simply prohibits law-abiding California citizens from possessing ammunition that is now ubiquitous. These magazines are so common that they are standard on many firearms: “[O]n a nationwide basis most pistols are manufactured with magazines holding ten to 17 rounds.” At its core, the ban undermines the right to self-preservation and self-defense—the central tenant of the Second Amendment.

Up For Debate

While the upcoming debate hosted by the Colleges of Law will not definitively resolve whether Proposition 63’s ban violates the Constitution, it will highlight the legal and policy arguments that underlie the question presented. Ultimately, the Supreme Court will need to decide whether Proposition 63, and similar laws, are constitutional. Consequently, there is no doubt that Senators from both sides of the aisle will question Neil Gorsuch, the nominee to the Supreme Court, on his understanding of the scope and limits of the Second Amendment.

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