When a federal judge in San Diego issued a preliminary injunction Thursday against enforcement of a ban on ammunition magazines that hold more than 10 rounds, he verbally pulverized California’s gun control laws in the process.
U.S. District Judge Roger T. Benitez, a George W. Bush appointee, noted in his 66-page order that, “California’s gun laws are complicated…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.”
The case, Duncan v. Becerra, was one of two cases challenging the magazine ban, passed by 63 percent of the voters last fall as Proposition 63. It was brought by the California Rifle and Pistol Association. Coincidentally, the other case saw U.S. District Judge William Shubb of Sacramento decide the other way, against the plaintiffs. This poses a dilemma for the Ninth Circuit Court of Appeals, where this challenge is almost certainly headed.
In his ruling, which may be read here, Judge Benitez also observed, “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.”
Will this presidential election be the most important in American history?
“Ammunition magazines that hold more than 10 rounds are popular. Some estimate that as many as 100,000,000 such magazines are currently owned by citizens of the United States. Under federal law, they may be bought, sold, lent, used, and possessed. However, unlike citizens and residents of 43 other states, and hundreds if not thousands of local jurisdictions, after June 30, 2017, all law-abiding citizens of California will be deemed criminals if they simply possess a lawfully acquired magazine capable of holding more than 10 rounds of ammunition.”—U.S. District Judge Roger T. Benitez
Not only did Judge Benitez blister the Golden State’s gun control laws in general, he also 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.”
The preliminary injunction may only be temporary, since the Ninth Circuit has not been particularly friendly to the Second Amendment in recent years. But the Benitez decision is filled with he kind of “red meat” observations that give gun owners some hope that there is some common sense in the federal judiciary.
Near the end of his ruling, Judge Benitez had this to say:
“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. 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.”
