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Federal judge's overturn of Calif.'s ban on large capacity ammo magazines could have national impact [1]
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Date: 2023-09-26
U.S. District Judge Roger Benitez, whom California Gov. Gavin Newsom once called “a stone cold ideologue,” issued his predicted smackdown Friday of the state’s ban on possession of large capacity ammunition magazines capable of holding more than 10 rounds. He accompanied his ruling with an injunction on further enforcement of the law with a 10-day stay as the inevitable appeals process unfolds. The ultimate outcome of this case could have broad consequences in the dozen states with some kind of magazine limit, especially Oregon and Washington, which have almost identical bans to California’s.
The states in green have some kind of limit on the number of rounds a gun magazine can legally hold.
There could be a long way to go before this is finally settled, but the ruling provides a masterclass for other district and appeals court judges on how to follow exactly what the extremist justices on the Supreme Court want them to write in their opinions regarding Second Amendment issues going forward. Benitez is noted for being ardent on the issue of firearms, but this ruling was especially so, with some barely veiled mockery of the state’s arguments. The case could wind up at the Supreme Court where the current majority perspective on the Second Amendment has hardened into absurdity. Which means it’s highly likely—if the case does get that far—that the high court’s majority will affirm Benitez’s take on the magazine ban.
The ruling is one of several in which Benitez has decided to favor advocates seeking to deep-six laws governing guns and ammunition, including California’s assault weapons ban and its required background checks for ammunition purchases.
Here are selections from Benitez’s ruling:
U.S. District Judge Roger Benitez “This case is about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes. Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.” [...] “Because millions of removable firearm magazines able to hold between 10 and 30 rounds are commonly owned by law-abiding citizens for lawful purposes, including self-defense, and because they are reasonably related to service in the militia, the magazines are presumptively within the protection of the Second Amendment. There is no American history or tradition of regulating firearms based on the number of rounds they can shoot, or of regulating the amount of ammunition that can be kept and carried.” [...] "One government solution to a few mad men with guns is a law that makes into criminals responsible, law-abiding people wanting larger magazines simply to protect themselves. The history and tradition of the Second Amendment clearly supports state laws against the use or misuse of firearms with unlawful intent, but not the disarmament of the law-abiding citizen." [...] "These choices have always belonged to the People to decide for themselves how much firepower they need. The right to have firearms for social security was important at the time the Constitution was adopted. Removable firearm magazines of all sizes are necessary components of semiautomatic firearms. Therefore, magazines come within the text of the constitutional declaration that the right to keep and bear arms shall not be infringed."
Newsom said in response to the news: “Unsurprisingly, Judge Benitez chose to issue this radical decision on the same day President Biden announced his new Office of Gun Violence Prevention. As a reminder, this is the same judge who used Gun Violence Awareness Day to strike down California’s assault weapons ban—comparing the AR-15 to a Swiss Army knife. Judge Benitez is not even pretending anymore. This is politics, pure and simple.”
In June, the governor announced his proposed 28th Amendment. If ratified, it would add four gun reforms into the U.S. Constitution, but without repealing the 2nd Amendment :
Raise the federal minimum age to buy any firearm from 18 to 21;
Require universal background checks for all gun buys
Set a reasonable waiting period for all gun buys
Prohibit the civilian purchase of assault weapons
The amendment would also affirm that Congress, states, and local governments can enact additional common-sense gun safety regulations.
Getting such an amendment into the Constitution will be no easy task and, even if successful, take a very long time. At Newsom’s behest, this month the California legislature became the first state to pass a resolution calling for an Article V convention to pass a gun regulation amendment. But legal scholars aren’t in consensus about whether such conventions—which require support from two-thirds of the states (34 of 50) to get rolling—can be restricted to a single topic. And the whole process is likely to tangled given that procedures for such a convention have never been worked out since none has ever been called previously. The road to success will be a bumpy one if not a dead-end.
California Attorney General Rob Bonta
In response to Benitez, Attorney General Rob Bonta said: “In the past half-century, large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths and in 100% of gun massacres with 20 or more deaths. We will continue to fight for our authority to keep Californians safe from weapon enhancements designed to cause mass casualties. In the meantime, if the Ninth Circuit stays the decision pending appeal, large-capacity magazines will remain unlawful for purchase, transfer, or possession in California.” He has vowed to appeal.
Importing, manufacturing, selling, lending or giving large capacity magazines (LCMs) to another person have been prohibited in California since 2000. Buying or receiving them was outlawed in 2013. And voters in 2016 passed Proposition 63, which banned possessing LCMs at all and requires a background check for buying ammunition. Using prescriptions issued in rulings by the U.S. Supreme Court during the justices’ 15-year-long reinterpretation of the Constitution’s Second Amendment, Judge Benitez was not sparing in his 71-page shoot-down of the law.
The extra dose of fire that opinion came in part because he’d already ruled on this case in 2021, a decision that contributed to the advocates of weakening or obliterating gun laws dubbing him “Saint Benitez.” It seems he was intent on displaying a little vindicating schadenfreude in the ruling after having had his original ruling overturned in 2021 by the 9th Circuit Court of Appeals followed by the Supreme Court remanding the appeal opinion back to the 9th for a rewrite.
But let’s back up a bit.
The California case started out in 2017 as Virginia Duncan, and the California Rifle & Pistol Association, et al v. Xavier Becerra, who was at the time California’s attorney general. Now it’s Duncan v. Rob Bonta, the current attorney general, who plans to fild an appeal with the 9th Circuit over Benitez’s Friday ruling. After Benitez made his first ruling two years ago that the law was unconstitutional, the 9th Circuit overturned him and upheld the ban. Duncan appealed the 9th’s ruling to the Supreme Court.
Having in June 2022 established a new standard for judging the constitutionality of gun laws in the highly significant ruling of New York State Rifle & Pistol Association, Inc v. Bruen, the Supreme Court vacated and remanded the Duncan ruling back to the 9th’s judges with a note to rewrite it. The 9th promptly handed this task back to Benitez. And now, with his long-awaited decision delivered it’s headed back to the 9th. The circuit court could just let the ruling stand. That seems unlikely. But if it did, LCMs would be legal again in California in October.
Justice Clarence Thomas
The 9th is still widely viewed as the most liberal of the federal appeals courts. But unlike its ruling overturning Benitez’s first decision in 2021, now the appeals court is in a bind because of a specific directive from the 5-6 Supreme Court justices who now set the boundaries lower courts must submit to in their rulings on gun laws.
Here’s the short version. Historically, courts have in the bulk of cases judged the constitutionality of gun regulations based on a two-step process. First, the judge would decide whether the regulated conduct fell inside the Second Amendment’s original scope, If so, “intermediate scrutiny” was applied. To prevail, the government had to show that a regulation was “substantially related to the achievement of an important governmental interest,” that is, whether it serves a valid public purpose. Under this approach, most gun regulations were upheld. But, in Bruen, Justice Clarence Thomas said this was “one step too many.” Henceforth, the test of constitutionality must be solely based on text, history, and tradition. Consideration of public purpose is disallowed unless an analogous legal precedent dating back to 1791 when Americans ratified the Second Amendment, or around 1868, when the 14th Amendment extended protections against federal infringements on gun rights to the states.
In arguing Duncan, California failed to find a clear analogue to the LCM ban. Which is no surprise. It wasn’t that California’s case was weak for lack of diligence. It was weak because no truly analogous historical examples exist for this regulation. The state’s true argument is that the ban serves an “important governmental interest,” the public purpose of saving lives. But that avenue was yanked away by the U.S. Supreme Court majority in Bruen. It was thus easy for Benitez to demolish the state’s remaining argument because it could not meet the impossible new standard.
The reactionary justices whine about the court’s loss of respect and credibility even as it makes it forbidden to gauge the constitutionality of a gun-related law by any consideration of public purpose. It’s all about whether a previous similar law can be found to have existed more than a century and a half ago.
Newsom says “It’s time to wake up. Unless we enshrine a Right to Safety in the Constitution, we are at the mercy of ideologues like Judge Benitez. All of our gun safety laws that are proven to save lives are at risk. It doesn’t matter what laws we pass. It doesn’t matter what the voters decide. Concealed carry. Banning weapons of war. Reasonable waiting periods. Background checks. The idealogues are coming for all of them.”
There is no guarantee that the Duncan case will be ultimately accepted for Supreme Court review. But, as this and numerous other gun cases around the country demonstrate, the majority of justices are on a course to trash gun regulations in states that aren’t weakening them on their own, from California to the New York island, and all places in between.
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