by Dave Workman | Senior Editor
Judge Roger T. Benitez
When a federal judge in San Diego blocked California’s ban on ammunition magazines that hold more than ten cartridges at the end of June, he issued a preliminary injunction that was loaded with criticism of California’s myriad gun control laws.
Whether the preliminary injunction gets reversed by the traditionally anti-gun 9th Circuit Court of Appeals in San Francisco, the 66-page order by US District Judge Roger Benitez is a devastating analysis of the ineffectiveness of gun control, especially in the Golden State.
Benitez, a George W. Bush appointee, ruled that the requirements of Proposition 63, a California gun control measure passed in November 2016, would have taken effect July 1. The preliminary injunction put that on hold.
As the judge put it, civil rights cannot be subject to a popular vote.
“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,” Judge Benitez wrote.
He said the Constitution “is a shield from the tyranny of the majority,” and that the rights of gun owners “are not eliminated simply because they possess `unpopular’ magazines holding more than 10 rounds.” And he didn’t stop there.
The challenge was brought by the California Rifle and Pistol Association with support from the National Rifle Association and several private citizens. It is one of two challenges to the magazine ban, and ironically, a different federal judge ruled a couple of hours before Benitez exactly the opposite way. This could set up an interesting problem for the 9th Circuit Court.
Judge Benitez ruled that the ban is essentially a government “taking” and also amounted to denying Golden State gun owners of their Second Amendment rights, according to Fox News. In his ruling, quoted by Fox, Judge Benitez observed, “Hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property.”
He also had this to say: “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.”
California Attorney General Xavier Becerra argued that Proposition 63, passed by voters last fall, was aimed at assuring public safety. But Judge Benitez detailed several cases that refute Becerra’s argument.
He spent several paragraphs explaining that laws already on the books in California have not prevented the kinds of crimes for which they were adopted.
“To sum up,” he wrote, “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 (the new ban) 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.”
“California’s gun laws are complicated,” the judge elaborated. “Proposition 63 adds one more layer of complexity. Perhaps too much complexity…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.”
Judge Benitez suggested strongly that the plaintiffs in this case could ultimately prevail.
“Ultimately,” he wrote, “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.”
Near the end of his ruling, the judge seemingly lowered the proverbial boom:
“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 multiple weapons. The State could then rationalize a one-weapon-per-individual law. Since ‘merely’ brandishing a firearm is usually effective as a defense to criminal attack (according to the State’s experts), it could be argued that a one-revolver-with-one-round-per-individual ban is a reasonable experiment in state police power as a means to protect citizens and law enforcement officers from gun violence.
“Statutes disarming law-abiding responsible citizen gun owners reflect an opinion on gun policy,” he continued. “Courts are not free to impose their own policy choices on sovereign states. But as Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of debate. Disarming California’s law-abiding citizenry is not a constitutionally-permissible policy choice.”
