Sorry Gavin, Your Civilian Disarmament Agenda Does Not Trump the Second Amendment

by C.D. Michel

High Capacity Magazines 223 Ammunition Ammo
High Capacity Magazines
C.D. Michel
C.D. Michel

U.S.A.-(Ammoland.com)- On June 29 2017, 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.

Gavin Newsome
Gavin Newsome

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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CalGunLaws.com is an online research resource designed primarily for use by attorneys and interested firearm owners. CalGunLaws.com strives to provide easy access to and facilitate understanding of the multitude of complex federal, state, and local firearm laws and ordinances, administrative and executive regulations, case law, and past and current litigation that defines the California firearms regulatory scheme in theory and practice.

43 thoughts on “Sorry Gavin, Your Civilian Disarmament Agenda Does Not Trump the Second Amendment

  1. Gavin Newsome looks like Patrick Bateman from the book and movie “American Psycho”.

    Both equally demented.

    1. Jack Patriot, visual similarities aside, Bateman plays a mere fictional character…Newscum is real evil personified. Don’t let Hollywierd fool you.

  2. It is good, very good to see a judge use common sense to make a decision. One would think that all judges would have some common sense, but this is not the case. Many are projecting a political agenda and it is mostly a liberal agenda that attaches a touchy-feely decision that does little if anything. The US needs law abiding gun owners. The reasons are many and there is no adequate argument that will defeat ownership by law abiding citizens.

  3. Studies and “expert” testimony, real or imaginary statistics and “public safety” aside, it all does not go above the enumerated and protected right. And what about the “public safety” issue of Citizens being able to defend themselves? Does not self defense come under “public safety”?

    1. Arch Stanton, stop buying into the “false narrative” of the Gun-Hating Left and the Maggot Media. Just stop. Stay on the high ground with us. It has always been about the Second Amendment…and nothing else.

  4. You have to pick your battles, with so many DemoRats and RINO’s they are in control.

    When real patriots are elected in California then things can change for the better.

  5. Strange how during WW2 with suicide attacks by the Japanese , EIGHT round M-1 rifles worked wonders, the Brits had 10 round Enfields and managed to fend off attackers. The larger capacity didn’t come along until Vietnam and then it was spray and pray.

    1. 8 and 10 round rifles supplemented with Thompson .45ACP automatic rifles with 30 and 50 round capacity . and M2 Browning .50 cal with 9 yards of linked ammo, and of course plenty of hand grenades.

    2. Don’t forget that the American Browning Automatic Rifle had 20 Round Magazines, the British Sten gun had 30 rounds, the Bren gun has 20-30 rounds, the Russian PPsh41 and Psh43 both had 30 rounds, the German Mp38/40 had 30 rounds. Hell, even the Winchester model of 1873, when it came out that year, had 13 rounds as standard. John Garand, the inventor of the M1 Rifle, originally envisioned a magazine fed rifle in .276 Pedersen. The Army nixed the magazine because it felt too many troops would lose them or they would become damaged, etc. That required Garand to go to the EnBloc clip, which would have held 10 rounds of .276 ammo. Then athe Army nixed the .276 because it did not want to introduce a new cartridge into the supply system, as there were millions upon million rounds of 30-06 left over from WWI and allthe rifles that were chambered for it. So…..with the 30-06 being slightly larger in diameter than the .276, the capacity of the M1 was reduced to 8 rounds.

    3. It’s really not strange at all. Buying magazines that can hold higher than 10 rounds were outlawed to sell in California years ago…I bought the 20 & 30 rounds mags because they are 1/3 the price of years ago. I have never been arrested in my 50 plus years on this planet. The Government now wants to take all my mags for my sporting rifle that I use in competition shoots, force me to buy all new equipment or turn me into a felon.
      This law does nothing to make life safer, my property is being confiscated & I must spend big dollars for replacements that may be outlawed next year.
      How would you like it if they outlawed the underwear everyone in your house owns for no reason other than political?

      1. Never buy into the red flag beseeching about “stopping crime,” “reducing violence” or “stopping the killing.” Every restriction upon our Second Amendment Rights, be it “magazine bans,” “assault weapon bans,” “Saturday Night Special bans,” “lead bullet bans,” “sniper weapon bans,” “50 BMG bans,” “ammo sales registration,” “filling out 4473’s,” “$200 tax on Full-Auto/short barrel/silencers” and every other cockamamie scheme the Left cooks up is all leading to one end and only one end…the end of firearms ownership for most American (of course the Elites will always have theirs.) One phoney scheme at a time.

  6. The Ninth Circuit court doesn’t bend over backwards for anybody. What they do is bend the citizenry under their sway over and hold them there while they ask if any politician would like to be the first to have a turn. Quite frankly they are a disgrace to the bench.

    1. The Revelator, recall that the entire Federal Court “system” was outlined in Article III, Section 1 of the the United States Constitution. However, it was the Judiciary Act of 1789, that created the Federal Courts and United Stated Court of Appeals as we know it today. So, one solution to the the “problem” of the Ninth District Court of Appeals is to merely pass legislation that simply increases the number of judges on each appellate panel, and pack more “Originalists” Judges onto the Court. This is exactly what FDR wanted to do with the Supreme Court. It’s all completely legal.

      Part of the “problem” now is the hindrance, by angry RINO’s, DemoRats and Leftist BureauRats, of appointments and nominations desired by President Trump. Presently there are four vacancies in just the Ninth District alone that are going unfilled.

      1. You do realize he was arguing for self defense as the innate unalienable right(tied to life) that qualifies the second amendment, right? He wasn’t buying into any false narrative, but arguing against that very thing. Re read it, what he said was correct.

        1. Sorry, the above comment jumped to the wrong comment, it was about your comment to Arch Stanton.

          As to the 9nth circuit, so just like Obama did to the DC circuit then? I’m sorry, two wrongs do not make a right, and that type of “Solution” only lets the problem further exacerbate itself. The real solution is to put safeguards in place that qualify judges as having to adhere to the constitution or face severe, enforceable punishments not the least of which is banishment from the BAR in all 50 states. If we don’t do that, all we get is a Court that suddenly has 25 members because successive idiots…. Errr.. Presidents disagree with each other.

          Also. I am a Constitutionalist. I am not a fan of Donald Trump, and I reserve my right to judge him based on his actions. If you are a die hard Trump fan, you may want to refrain from replying as such to anything I post, lest an issue come up. In the meantime, best wishes for the upcoming week.

          1. @TR, you know, of course, that the justices do not have to be members of any state bar or the federal bar? Anyone can be a justice of the Supreme Court of the United States. In fact, a president could go down to his favorite bar and pick someone. Why not most of them are not following the Constitution, anyway. What is the difference between not following the Constitution because of ones personal views and not following the Constitution because you have never read it. I say the next SCOTUS nominee should be a member of Pat’s Irish Bar and Grill.

          2. @Wild Bill
            Yes, I am aware of that. What I was referring to was a punitive measure not only stripping an individual from their judgeship, but also preventing them from practicing Law ever again if they willfully violate the Constitution or the protections of the Constitution. I also said that should be the least, or lowest, of the punishments meted out. And that was in the context of all other courts aside from the Supreme court. In this case, the most relevant happened to be the circuit courts, whose positions do not have the protections chartered in the Constitution for the position of Supreme Court judgeship. Neither should this only be limited to judges as well, but to prosecuting attorneys also. Probably the best example of trash befitting this argument is none other than Milwaukee County District Attorney John Chisholm of Wisconsin, who was the individual behind the now infamous “John Doe” raids of 2012/2013. After the Recall election of Scott Walker, who beat it like a drum, this scuzzbag decided to launch a politically motivated intimidation campaign involving the subpoena and full SWAT raids of several Conservative activists without evidence or probable cause under that state’s “John Doe” laws. After each raid, the victims were told they were under a gag order enforceable with criminal penalties if they talked about the unconstitutional raids, the unconstitutional seizure of documents and electronic data from their homes, and the violation of their first amendment rights. The State Supreme Court later found that investigation to be in violation of its Constitution. I hope this better clarifies what I was talking about if there was any confusion.

            So, are you saying I need to start going to Pat’s so I can be nominated? How kind of you.

          3. @Wild Bill
            There is no “probably” about it. I can also say that I don’t mince words so a lot of politicians would be ticked off, more so that I would physically throw anyone attempting to “Negotiate” or buy a decision from me down every single one of the capital building’s steps, and I would likely be assassinated within a week of being seated.

  7. I rememver one famous adversary of the US during WWII, a Japanese military leader IIRC, saying that America was impossible to invade, because “there is a gun behind every blade of grass”.

    California seems to think that being “nice” to everyone and disarming themselves is the best way to guarantee their safety against all enemies, foreign and domestic.

    I can see the appeal in that line of thinking because it appeals to assuming the best in people and humanity.

    At the same time, while it’s certainly a good thing to assume the best in people and seek to establish peace, you must also be prepared to defend against the worst in people.

    An armed populace is not necessary to fight. It is necessary to secure the peace by making the fight too costly to engage in for those who would use force against you for their own ends.

    I have an AK-47, with military optics and 73 round drums to go along with my 30 and 40 round mags. I fire at least a couple hundred rounds a year through it just to stay proficient.

    I don’t do that because I think the federal government is going to collapse tomorrow, or the Chinese Red Army is coming to town next week, or because the zombie/robot/alien invasion apocalypse is imminent.

    I do it because an armed society is a polite society, and because the individual in society is, and should be, the ultimate source of political and economic power and authority in our nation. I do it to keep our society free.

    And I do it because it’s fun as hell.

    Best regards, citizens.

  8. I think that the real story here is Federal District Court Judge Roger T. Benitez. It sounds to me like Judge Benitez would make an excellent replacement for Granny Ginzburg or Odd Ball Kennedy.

  9. DITO for N.Y.S. only LEOs can have high cap mags . Thank-you judge for doing right by cal state gun owners . Hopefully it will RUB OFF in our state as well

  10. “The eyes are the windows to the soul.” I can tell by the look in Newsoms eyes that he is a shifty maggot.

      1. @Silence Dogood. I don’t bless evil I was just being sarcastic. I think it’s ok for preachers to do this as American citizens and hey bro you make good comments but don’t go nitpicking me man just lighten up some.

      2. @Silence, “Bless their little hearts” (or variations there of) is a southern expression meaning that the person being talked about is wrong or wrong in the head. It is a typical form of southern politeness.

  11. Yeah great. Now, when will the NRA “fight” the illegal and unconstitutional “high capacity magazine ban” that has been “law” here in the City of Los Angeles for the last 2-years? Can you say never? The DemoRats and RINO’s have “controlled” the City of Los Angeles, through “voter” fraud (voters registered at cemeteries, “voters” who died years ago, “voters” who moved out of the State a decade ago, “voters” registered in multiple precincts massive ballot box stuffing, etc) and Illegal Aliens voting. No answer to that anywhere on the horizon, except moving out-of-state and let this State rot in the cesspool the DemoRats created.

    1. The LA City ban has already been repealed. You can thank NRA and CRPA for that. They did it. We are working on the other cities that passed local ordinances banning magazines. So say something nice about NRA please, and check out the NRA/CRPA legal affairs report on CalGuns.net to see all the other things being done.

      1. This was a big win that we really needed given Gunmageddon. Thank you Chuck and your team, NRA, and CRPA. My donation (via fb) and volunteer time will never compare to what you and your team put in.

        If anyone can “put their fingers on the scales of justice, and almost always results in upholding any form of gun-control” with their “convoluted” reasoning, it’s the 9th Circuit Court.

        This is a big win, but the fight continues.

        1. Eric_CA, speaking of of the mis-named “Gunmageddon” the NRA and CRPA were conspicuous by their absence. The NRA dumped $6 million into Nevada in losing attempt to stop Question 1, last year, which they failed to do. But, not one dime to stop Proposition 63 here in Kalifornia. I spent weeks collecting signatures to place “Gunmageddon” on the Ballot and I can tell you, the NRA and CRPA were no where to be seen.

          1. The fact is that both the NRA and CRPA spent the maximum amount of money allowed by California law without exposing their membership in the fight against gunmegeddon nightmare perpetrated by DeLeon and his cronies. Likewise the NRA and CRPA fought proposition 63 to the last minute.

            Unfortunately it’s easier to blame the NRA and CRPA rather than call out the 7 million california registered gun owners that failed to show up and vote at the polls.

            You get the government you have when you don’t exercise your right to vote.

          2. Well, tnat’s wrong too. There was a western outdoor news article that ran about this and CRPA / NRA’s efforts to support the Gunmaggedon signature effort

          3. Blame apathetic California gun owners who couldn’t even be bothered to sign the petition. A measly 350,000 was all that was needed out of what 10,000,000 gun owners?

          4. SD,

            I also spent weeks collecting signatures. I do not recall the facts as you do.

      2. Chuck Michel, you stated, “The LA City ban has already been repealed.” As a lawyer, I know you’re a wordsmith, but even you know that LA City did not “repeal” Section 46.30, Article 6.7, “Large-Capacity Magazine” ban created under Ordinance No. 183806 effective November 19, 2015. As you well know, the LA City Council, under Ordinance No. 184767, created a new “subsection” which was added that states the following: “(e) This Section shall expire on July 1, 2017, unless the City Council acts by ordinance to amend this Section to extend its effective period.” Which you could call a “sunset provision,” however, the LA City Council has not rested in its goose-stepping to more authoritarian controls. See the latest filings in Council File Number 13-0068, Title Prohibit Possession of High-Capacity Ammunition Magazines, Last Change Date: 02/23/2017 Expiration Date: 02/15/2019. Looks like a “new” magazine ban is about to go into effect.

        I understand you filed Case No. BS158682, back on October 23, 2015, on behalf of, primarily, several dozen Law Enforcement Officers. Strange, nearly all of your Plaintiffs were/are Law Enforcement Officers, who were already “exempted” from the Magazine ban and none of whom reside in the City of Los Angeles. How again did that “case” help Angeleos under attack by Leftist Gun-Hating Council Members?

        Little of this matters as “state preemption” via Loni Hancock’s Senate Bill 1446 (10-round Magazine Ban) was signed by Governor Brown on June 30, 2016 and Gavin Newsom’s Proposition 63, so-called, “Safety for All Act Ballot Initiative,” in part amended Penal Code Section 32310, by banning magazines over 10-rounds, will supersede the LA City magazine ban.

        How exactly are Kalifornia gun owners “winning” in all of this…still mystifies me.

        1. Chuck Michel, you stated, “The LA City ban has already been repealed.” As a lawyer, I know you’re a wordsmith, but even you know that LA City did not “repeal” Section 46.30, Article 6.7, “Large-Capacity Magazine” ban created under Ordinance No. 183806 effective November 19, 2015. As you well know, the LA City Council, under Ordinance No. 184767, created a new “subsection” which was added that states the following: “(e) This Section shall expire on July 1, 2017, unless the City Council acts by ordinance to amend this Section to extend its effective period.” Which you could call a “sunset provision,”

          A sunset provision that only exists because NRA and CRPA insisted they create it because the MC section is preempted. And it effect is the ordinance is no longer in effect. Call that whatever you choose.

          however, the LA City Council has not rested in its goose-stepping to more authoritarian controls. See the latest filings in Council File Number 13-0068, Title Prohibit Possession of High-Capacity Ammunition Magazines, Last Change Date: 02/23/2017 Expiration Date: 02/15/2019. Looks like a “new” magazine ban is about to go into effect.

          Yes, they can put it back. I dont think thats what this is thought. I’ll check on what this actually is.

          Now i agree that the LA City Council is rabidly anti-gun-owner, and so is the Democrap legislature. And at the macro level, we are taking a beating in Kal. But we have NOT given up, NRA and CRPA are BOTH engaged, Every cent raised by either group from California is spent in California. And we ARE WINNING some battles. Don’t mistake a lack of success overall in this rigged political state with a lack of effort. Don’t blame NRA for California gun owner apathy – there are 10 million but we cant even get 400,000 to ENGAGE. If 1 million would engage, we would control the state. And don’t underestimate the potential for help from the federal level – help that is only there because the NRA put Trump in office.

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