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.-( 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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Jack Patriot

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

Both equally demented.

Silence Dogood

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


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.

Stan Murphree

A tactical reload takes less than a second.

Arch Stanton

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”?

Silence Dogood

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.


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.


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.


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.

Arch Stanton

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… Read more »


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… Read more »

Silence Dogood

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.

The Revelator

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.

Silence Dogood

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.… Read more »

The Revelator

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.

The Revelator

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… Read more »

Wild Bill

@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… Read more »

The Revelator

@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… Read more »

Wild Bill

Yeah, why not probably follow the Constitutuon closer than the ones up there now.

The Revelator

@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.


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,… Read more »

Wild Bill

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.


Judge Benitez definitely would be prefer to the latter.


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


Notify me of significant anti 2nd Amendment rulings whenever they occur, Thank You!


He is the bad guy in a Jackie Chan movie.


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


MAGGOT with all UPPER CASE letters !

Pistol Packin Preacher

Kommiefornia, bless their darlin hearts and stupid heads.

Silence Dogood

“Preacher” why would you “bless” evil?

Pistol Packin Preacher

@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.

Wild Bill

@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.

Silence Dogood

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… Read more »

Chuck Michel

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 to see all the other things being done.

Wild Bill

@chuckfab, Absent the NRA, no one would have firearms today.


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.

Silence Dogood

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.

Rick Travis

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.

Chuck Michel

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


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?

Eric Gordillo


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

Silence Dogood

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… Read more »

Chuck Michel

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… Read more »