Sorry Gavin, Your Civilian Disarmament Agenda Does Not Trump SECOND AMENDMENT Constitutional Rights



On June 29, Cuban-born Federal District Court Judge Roger T. Benitez issued an injunction in an NRA and CRPA supported lawsuit that challenges California’s laws prohibiting the possession of standard capacity firearm magazines. For now at least, Judge Benitez’s ruling in the Duncan v. Becerra case stops the ban from taking effect. More generally, and perhaps more significantly, it affirms that the Second Amendment is not a second class right, and must be respected and protected by the courts.

In 1960, when he was 10 years old, Judge Benitez emigrated from communist controlled Cuba to the United States. He was accompanied by his 13-year old brother, but his mother was initially unable to accompany them because she had been arrested by Castro’s forces on suspicion of sympathizing with the United States Government. After being held for three days without being allowed to call a lawyer or her family, she was fortunately released, and was eventually able to escape Castro’s regime.

Judge Benitez’ family’s experiences under communist rule have impacted his judicial career, and apparently shaped his thinking. Thursday’s well-reasoned and meticulously thorough 66-page decision to issue an injunction stopping California law from turning hundreds of thousands of California gun owners into criminals demonstrates that.  It shows Judge Benitez’s profound respect for, and appreciation of, the freedoms enshrined in the United States Constitution – an appreciation likely brought into sharp relief compared to the oppressive dictatorship he and his family lived through.

It seems the Judge has seen how insidious government infringements on civil rights can be, and grasps how the Founding Fathers shaped the Bill of Rights to protect us from statist politicians incrementally increasing those infringements, even in the beguilingly alluring name of “public safety.”

It’s a perspective many jurists sadly lack.

The ruling is welcome news for gun owners who are under siege from shrewd California lawmakers with an extreme “progressive” agenda. Last year California politicians were faced with a threat from Gavin Newsom’s self-promoting Prop 63 as he vied to seize the mantle of the “King-of-Gun-Control” from Senator Kevin DeLeon so he could build his name recognition in his gubernatorial campaign. So they raced to pass a number of gun bans that have collectively become known as “Gunmageddon.” Both Prop 63 and Gunmaggedon included a ban on the possession of standard capacity magazines that can hold more than ten rounds. Although acquisition and importation of the magazines had been banned since 2000, under the new laws gun owners were compelled to “dispossess” themselves of the magazines by July 1. It’s government confiscation with a mustache. But by issuing the preliminary injunction, Judge Benitez instead preserved the status quo while the constitutionality of the ban is fully litigated in court, where plaintiffs are seeking to eventually have a permanent injunction issued.

Unsurprisingly Newsom, Prop 63’s main proponent, was unhappy with the decision. As he stated to Fox News, “large-capacity magazines enable murderers to unleash dozens of rounds without having to stop and reload.”

But to quote the landmark case of District of Columbia v. Heller, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” And despite Prop 63’s purported public safety interests, those interests “may not eviscerate the Second Amendment,” as Judge Benitez put it.

Even so, Newsom’s claim that banning these magazines would somehow save lives is pure fallacy. To support this “policy choice,” attorneys for the government offered a number of “studies” and “expert” testimonies trying to prop up that claim. But unlike some courts that have almost blindly accept the government’s claims without scrutinizing the evidence, Judge Benitez took a close look. He found that state’s evidence was inconclusive at best. One of those “experts” admitted that “it is not clear how often the ability to fire more than 10 shots without reloading . . . affects the outcomes of gun attacks.” Another so-called expert cited nothing more than news articles in concluding that “the bans on large capacity magazines can help save lives by forcing mass shooters to pause and reload ammunition.”

As Judge Benitez correctly notes, “the burden of justification is demanding and it rests entirely on the State.” In order to meet this burden, the State cannot “get away with shoddy data or reasoning.” But in this case, the State’s evidence is nothing more than a “false dichotomy.”  For as “a purely public policy choice, a government may declare that firearms of any capacity are dangerous in the hands of criminals,” while simultaneously concluding that “firearms with larger than 10-round magazines in the hands of law-abiding citizens makes every individual safer and the public as a whole safer.” As a result, banning such magazines “is hardly the reasonable fit” constitutionally required to uphold such a ban.

In addition to the lack of evidentiary support for the policy being advocated, Judge Benitez bravely questioned the appropriateness of the trend of lower courts to apply a convoluted, multi-step test in scrutinizing the constitutionality of gun control laws. It’s a subjective test that lets judges put their fingers on the scales of justice, and almost always results in upholding any form of gun-control. But even if that test were applied here, Judge Benitez found the State’s evidence to be “incomplete,” “unreliable,” and “speculative” at best, flatly rejecting the State’s attempt to support its ban with anything less than “hard facts and reasonable inferences drawn from convincing analysis.”

Newsom wasn’t the only one to criticize Judge Benitez’s clear and well-founded reasoning. Having just recently suffering a defeat before the Office of Administrative Law, which rejected his Department’s most recent proposed “assault weapon” regulations, California Attorney General Xavier Becerra put out a press release stating that “Proposition 63 was overwhelmingly approved by voters to increase public safety and enhance security in a sensible and constitutional way.”

But Judge Benitez was “mindful that a majority of California voters approved” Prop 63, just as he was equally mindful that “the Constitution is a shield from the tyranny of the majority.” If all that was needed to undermine constitutionally protected rights was a simple majority vote, the Constitution would long ago have lost all meaning. And without the Constitution to preserve and protect America’s civil liberties we could, and given that bureaucrats crave power and power inevitably corrupts almost certainly eventually would, find ourselves under oppressive government regimes — like those of 1960’s Cuba.

Of course, this won’t stop the state from appealing the decision to the Ninth Circuit, where the politicians hope to find a more sympathetic audience that will bend over intellectually backwards to defer to the government’s arguments.

To learn more about the Duncan case, as well as other NRA / CRPA lawsuits brought to protect the rights of California gun owners, subscribe to NRA and CRPA email alerts. And please take a moment to consider donating to the CRPA Foundation, to support the Duncan case, and other NRA / CRPA efforts in California.

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