In the seemingly endless parade of measures that infringe upon our rights under the Second Amendment, a recent one in California stands out as especially brazen. Following the passage of Proposition 63 last November, gun owners in the state who own magazines holding more than ten rounds were required to surrender them to state authorities by July 1.
Fortunately, on June 29, Judge Roger Benitez of the Southern District of California threw a monkey wrench into the plans of the gun (and magazine) grabbers.
A bit of history. Back in 2000, California made it illegal to sell magazines capable of holding more than ten rounds, but citizens who already owned those now “illegal” magazines were grandfathered in. They would be permitted by the gracious state to keep and if necessary use their property.
Prop 63 changed that. Owners of large magazines would have to either surrender them or face up to a one-year prison sentence. Peaceful people who own “oversized” magazines must obey the government and give up their property. Once again, instead of protecting individual rights, the state has gone on the attack against them.
A suit was filed against the constitutionality of the magazine confiscation law, naming California attorney general Xavier Becerra as the defendant. By good fortune, the case came before Judge Benitez. (Perhaps the fact that he was born in Havana has something to do with his aversion to authoritarianism.)
In Duncan v. Becerra, Judge Benitez issued an injunction that blocks Proposition 63 from taking effect. In doing so, writes law professor Josh Blackman on National Review, he “provided a clinic on how to scrutinize laws that restrict Second Amendment rights.”
Scrutinize is the crucial word. Often when judges hear cases involving laws and regulations that whittle away at the Second Amendment, they are bombarded with studies that purport to show that the restriction involved will substantially reduce gun violence while not have any detrimental impact on gun owners. The judge then takes a deferential posture that boils down to, “Who am I to disagree with all of this?”
Judge Benitez instead did what a judge should do when faced with a law that reduces people’s freedom – he analyzed each argument advanced in favor of the law. For example, the state tried to support its position by introducing a survey on shooting published in the “progressive” magazine Mother Jones. It tells you a lot about jurisprudence in California that the attorney general felt that he could include so feeble a piece of evidence as a survey in a political magazine. Judge Benitez was not impressed, writing that “it is fair to say that the magazine survey lacks some of the earmarks of a scientifically designed and unbiased collection of data.”
All right, Mother Jones is bantamweight stuff, but what about the proof supplied by the group established by Michael Bloomberg, Mayors Against Illegal Guns? It submitted a study of 92 mass shootings and from that reached the conclusion that a ban on high-capacity magazines (including the seizure of those currently in private hands) would reduce gun deaths.
Judge Benitez was not persuaded. He responded to the Mayors’ study, “Criminalizing possession of magazines holding more than 10 rounds likely would not have provided additional protection from gun violence for citizens or police officers or prevented the crime.” The judge was not going to approve of a law that deprives Americans of their rights and property based only on the weak supposition that a ban on large magazines might keep criminals from doing quite so much harm.
Besides, asked the judge, what is so important about ten rounds? Why not three? There is no logical stopping point short of the ultimate goal of the anti-gun forces – to keep citizens from legally owning any firearms at all.
Unfortunately, Judge Benitez’s ruling clashes with another decision by a federal judge in California over the enforceability of the state’s “turn in your magazines” decree. Undoubtedly, Attorney General Becerra will appeal to the Ninth Circuit for a stay of Benitez’s order. The very “liberal” Ninth Circuit is unlikely to decide that Judge Benitez had the better argument, despite his meticulous reasoning.
And what then? If you think that the Supreme Court with Justice Gorsuch now sitting is necessarily going to be favorable to Second Amendment cases, there was bad news recently. The Court denied certiorari in Peruta v. California, a case involving the extreme difficulty that many California residents face in trying to obtain a concealed carry permit due to the obstinacy of local officials for whom almost no showing of “good cause” is good enough. Justices Thomas and Gorsuch dissented.
Justice Thomas put the matter eloquently: “For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantee of the Second Amendment may seen antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.”
The sad truth is that jurists who believe that each American is entitled to choose the best means of self-defense are locked in a ferocious struggle with others who believe that politicians and government officials should make that choice for them. We need many more like Benitez, Thomas, and Gorsuch on the bench.
Ultimately, California may get its way and turn into criminals all its citizens who refuse to comply with the law against large capacity magazines. How many actual criminals and terrorists, however, will comply?
