By Dave Workman | Senior Editor
A federal judge’s ruling that the California ban on “large capacity magazines” is unconstitutional prompted state Attorney General Xavier Becerra, the defendant in the case, to quickly file for a stay of the judge’s ruling while an appeal to the 9th Circuit Court in San Francisco proceeds.
US District Judge Roger Benitez handed down an 86-page ruling that many say is a devastating review of the failure of California gun control, with repeated reminders that rights secured under the Second Amendment are not subject to public whim or popular votes. The case is known as Duncan v. Becerra.
Buried in the ruling is something of a rebuke to Becerra for having submitted “news articles and interest group surveys” to support his case, rather than police reports.
Some activists have suggested that in the process, Benitez unintentionally demonstrated that elections matter. Benitez was appointed to the federal court by former President George W. Bush in 2004.
As recalled by Fox News, magazines holding more than 10 rounds have been banned in California since 2000. But Benitez shredded the ban’s effectiveness by recounting several high-profile crimes since then that were not prevented.
For example, Benitez wrote, “Mother Jones Magazine lists 98 mass shooting events in the last 36 years. This is an average of 2.72 events per year in the entire United States. Of the 98 events over the last 36 years, 17 took place in California. This is an average of one event every two years in the most populous state in the nation.
“According to data from this 36-year survey of mass shootings,” the judge continued, “California’s prohibition on magazines holding more than 10 rounds would have done nothing to keep a shooter from shooting more than 10 rounds. That is because normally the perpetrator brings multiple weapons. The more weapons, the greater the firepower and the greater the potential for casualties! In 14 of the 17 California mass shooting events, multiple weapons were brought. For example, in the 1988 mass shooting event in Sunnyvale, the shooter brought two pistols, two revolvers, two shotguns, and a bolt action rifle (all obtained legally). No large capacity magazines were used…”
Two pages later, Benitez slammed down on California’s lack of gun control success.
“To summarize,” he observed, “the 36-year survey of mass shootings by Mother Jones magazine put forth by the AG as evidence of the State’s need for § 32310, undercuts its own argument. The AG’s evidence demonstrates that mass shootings in California are rare, and its criminalization of large capacity magazine acquisition and possession has had no effect on reducing the number of shots a perpetrator can fire. The only effect of § 32310 is to make criminals of California’s 39 million law-abiding citizens who want to have ready for their self-defense a firearm with more than 10 rounds.”
Later, the judge essentially summed up the argument against magazine bans, noting, “No case has held that intermediate scrutiny would permit a state to impinge even slightly on the Second Amendment right by employing a known failed experiment. Congress tried for a decade the nationwide experiment of prohibiting large capacity magazines. It failed. California has continued the failed experiment for another decade and now suggests that it may continue to do so ad infinitum without demonstrating success. That makes no sense.”
Seven pages later, Judge Benitez refuted arguments from the gun prohibition lobby that “weapons of war” should be banned from civilian ownership.
“That large capacity magazines are useful in military service, there is no doubt,” he wrote. “But the fact that they may be useful, or even ‘most useful,’ for military purposes does not nullify their usefulness for law-abiding responsible citizens. It is the fact that they are commonly-possessed by these citizens for lawful purposes that places them directly beneath the umbrella of the Second Amendment.”
If Becerra’s appeal to the Ninth Circuit is successful, then expect this case to be sent to the Supreme Court for possible review. The high court doesn’t have to take this case, but with its more conservative face, the high court may finally believe it is time to tackle Second Amendment issues and expand the legal landscape on this subject.
The case could have ramifications across the entire Ninth Circuit, which covers many of the western states, including Hawaii and Alaska, and perhaps nationally. If Judge Benitez is upheld, it could signal the beginning of possible challenges to similar restrictions in other states.
“People may cede liberty to their government in exchange for the promise of safety,” Judge Benitez warned. “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.”
Translation: rights, according to the judge, are not subject to a popular vote. That, say gun rights activists, should serve as a warning to the billionaire-backed, Seattle-based Alliance for Gun Responsibility, which thinks it can buy the Second Amendment and Article 1, Section 24 of the state constitution. The group has bankrolled and passed a trio of gun control measures since 2014, but the most recent one, Initiative 1639, is now the subject of a federal lawsuit filed in U.S. District Court in Tacoma. If the Benitez ruling stands, it could likely have an impact on challenges to any of the Washington initiatives.
There will be an effort to pass a ban on so-called “assault weapons” in Oregon next year. Possibly a similar effort would be mounted in Washington. The likely argument would be that such weapons are too dangerous to be in civilian hands.
Judge Benitez addressed that issue, on Page 21 of his ruling.
“Nothing in the Second Amendment makes lethality a factor to consider,” he explained, “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.”
