California Judge Issued Stay on Magazine Ban to Protect Gun Owners

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California Judge Issued Stay on Magazine Ban to Protect Gun Owners

California, U.S.A.-(Ammoland.com)- The Honorable Roger T. Benitez issued a stay on his own ruling to protect the hundreds of thousands of people who imported magazines into California while his ruling stood. He did that as a preemptive strike against the Ninth Circuit issuing a stay without the protection for those who had purchased magazines while it was in effect.

He had a choice, issue the stay under his conditions, or have the Ninth Circuit issue the stay under their conditions. He chose wisely.

The Summary Judgment ruling on Duncan v. Becerra was made on on 29 March, 2019. At that point it became legal to own, possess, manufacture, buy and sell magazines.  Three days later, the defendants asked for a stay. Application for Stay pending Appeal on 1 April, 2019

Good cause exists for the ex parte relief requested. If the Court’s Judgment is reversed on appeal, absent a stay of the Judgment pending appeal, the State of California will be irreparably harmed by the influx of large-capacity magazines during the appeal.

On 2 April, 2019, the Plaintiffs opposed a temporary stay.

Plaintiffs oppose the State’s request for a temporary stay of the judgment while the Court considers the State’s Ex Parte Application to Stay Judgment Pending Appeal of this Court’s Order Granting Plaintiffs’ Motion for Summary Judgment. Plaintiffs understand the State’s concerns, but should the judgment be stayed immediately, even if only temporarily, countless otherwise law-abiding Californians who have already ordered LCMs in reliance on the Court's order but have not received them would unjustly be subjected to severe criminal penalties without notice.See Cal. Penal Code § 32310(a); see alsoCal. Penal Code § 1170(h). Therefore, unless the Court can unequivocally protect those individuals in an order granting the State’s temporary stay request, that request should be denied.

On 4 April, 2019, at 2:48 p.m. AG Becerra gave notice of his intent to appeal to the Ninth Circuit for a temporary Stay of the Summary Judgment finding the Magazine ban unconstitutional.

PLEASE TAKE NOTICE that Defendant Xavier Becerra, in his official capacity as the Attorney General of the State of California, hereby appeals to the United States Court of Appeals for the Ninth Circuit from this Court’s final judgment, entered on March 29, 2019 (Dkt. No. 88), including the Court’s Order Granting Plaintiffs’ Motion for Summary Judgment, Declaring California Penal Code § 32310 Unconstitutional and Enjoining Enforcement, issued on March 29,2019 (Dkt. No. 87).

Later on 4 April, Judge Roger T. Benitez issued a temporary stay of the Summary Judgment, thus rendering the appeal to the Ninth Circuit moot.  Judge Benitez wisely issued the Stay before the Ninth Circuit could issue a Stay. Below, Judge Benitez notes that a Stay will harm all those who purchased magazines in a good faith belief the law was struck down as unconsitutional:

Without question, entering a stay pending appeal will harm the Plaintiffs, and all others like the Plaintiffs (who are many), who would choose to acquire and possess a firearm magazine holding more than 10 rounds for self-defense. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”

Then Judge Benitez issues the order to Stay the Summary Judgment. Note that it protects all those people who exercised their Second Amendment rights up to the effective time and date of the Stay, which was an additional day after the Stay was issued.

IT IS HEREBY FURTHER ORDERED that the permanent injunction enjoining enforcement of California Penal Code §32310 (a) and (b)shall remain in effect for those persons and business entities who have manufactured, imported, sold, or bought magazines able to hold more than 10 rounds between the entry of this Court’s injunction on March 29, 2019and 5:00 p.m., Friday, April 5, 2019.Dated: April 4, 2019

I have no doubt that Judge Benitez knew full well the Ninth Circuit would issue a stay if he did not. Reasonable people believe that the stay from a Ninth Circuit panel would not protect those who purchased magazines in the interval from 29 March to 5 April, 2019.

From the comments on an Ammoland article that I wrote, Randy A opined:

He didn’t, “strike it down”, he merely put a stay on it giving the State time to pull something else out of their ass to justify the ban. He wrote his stay in such a way that anyone who had purchased any standard capacity mags during that week could keep them without repercussions. It was a Great move.

 From a reddit.com discussion of the Stay:

This is probably the best outcome (at this stage) that we could have gotten. If Judge Benitez denied the stay, one written by the 9th Circuit could have let the ban on possession go into effect.

So if you live in California, this may be your last chance to buy >10 round magazines for the foreseeable future. Because even if we win at the 9th Circuit, it could be years before the case is over.

The Honorable Roger T. Benitez knows the system. He has been in it for many years. Do not mistake his efforts at supporting the Constitution and the rule of law for treachery or stupidity.


About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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DoszapJFGeorge SteeleOldSaltUSNRGregory Romeu Recent comment authors
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Doszap
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Doszap

Since this has gone to the 9th Circuit(most corrupt judicial body in the USA), we can count on this getting SLAMMED.
Excuse me for the OT addition, but I am betting a lot of you haven’t seen this.

https://www.zerohedge.com/political/fbi-data-shows-5-times-more-people-killed-knives-rifles-last-year

Scotty Gunn
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Scotty Gunn

So, for a few days they could legally buy and own. Now if they own them(high cap mags) they might be criminals for owning if this stay is over written?

AZDave
Guest
AZDave

The simple fact comes down to criminals who intend to acquire and use firearms in illegaly do not care about any of laws. So why do those of us who practice safety and responsible gun ownership need to have out rights taken? As much as we all support and respect our local law enforcement, they simply can not be everywhere all the time, and we as citizens should have the right to protect ourselves and families. This is a fundamental right we should always fight to retain n my humble opinion.

Kenneth Clark
Guest
Kenneth Clark

It’s still not about guns .. It’s about control..
California’s government is a testing ground for sosialist take over.. look at your history..
It’s bull to say – That could never happen in this day and age.. its happening all over the world (Right Now) the first , second and fourteenth amendment’s are in place to keep tyrants from taking over.. isn’t it just convenient these are the rights Democrats are trying to abolish first..
Gun Control works great for those who control all the guns..

Michael J
Guest
Michael J

What’s the purpose of any court ruling if it can easily be overturned by another? In the case of California, the attorney general doesn’t like the outcome he essentially invalidates the ruling and takes it to a higher court. State government should not be able to challenge the will of the people if any court rules in favor of them. This shows that the government is not interested what the public wants, but is following an agenda of what they want. California is notorious for overturning the voters on numerous occasions. They simply challenge what they don’t like and the… Read more »

John Lathrop
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John Lathrop

Check and balance until it gets to the Supreme Court

Gregory Romeu
Guest
Gregory Romeu

Seems it is now time for the dead-beat Californians to get off their asses and start yanking people out of office and off of benches that are either a using their powers or otherwise haven’t a damn clue what The Constitution of the United States is all about? REMOVE THESE IMBICILES NOW! DO NOT WAIT FOR AN ELECTION! There are far too many worthy personnel available to fill these positions!

OldSaltUSNR
Guest
OldSaltUSNR

Not easy to do. Californians DID get off their posteriors, get out the vote, and win about six or eight GOP seats in close races, only to see them “flip” Democrat weeks after the election, and initial (valid, legal) vote count, due to “ballot harvesting”. (Ballot harvesting is where the CA government sends out mail to anyone who applied for a license at the DMV, whether citizen, felon, or illegal alien, dead or alive”, and then sent around paid canvassers to those address to pick up “completed ballots”, and submit them in bulk AFTER the election, and AFTER the Democrats… Read more »

Bill
Guest
Bill

Buy a lot of guns. And ammo. If commie Dems get in office in the future there will be a rev. To bad they don’t have any.

John Dunlap
Guest
John Dunlap

I don’t think it will matter if they get back in or not. The Dems have gone from liberal, to progressive, to full blown socialism. Socialists always resort to violence when they meet resistance. There’s a storm coming. The 2020 elections will only determine how violent it is. Remember, Antifa is still out there.

Gregory Romeu
Guest
Gregory Romeu

Antifa only shows up when there are no Veterans an-force to spank their little asses!

revjen45
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revjen45

“Why I ask you are our elected so afraid of a legally armed public?”

Because criminals prefer unarmed victims.

Shawn McDonell
Guest
Shawn McDonell

So do tyrants

AUSTIN
Guest
AUSTIN

You Cannot subjugate an armed populace!

Marty
Guest
Marty

If the military (ordered by our government) really wanted to subdue the American populace, they could do it very quickly and easily. You do know that the military have non lethal frequency weapons that would make us slobber where we stand, right? I also understand that the majority of American soldiers would defy direct orders to hurt the American people, however it doesn’t take too many people to deploy these frequency weapons in any town or city. If the government really wanted to take over. In my opinion, firearms would be useless. The only way our guns would be effective,… Read more »

Get Out
Guest
Get Out

If that were the case and these weapons were effective we wouldn’t be 18 years in Afghanistan or 16 years in Iraq with still no end in sight. Besides IMOA just add mirrored sunglasses (Laser protection), high quality ear plugs (Auditory protection), aluminum foil tarps (Heat protection) and ultra-thick aluminum foil (Hats) to your BOB in case they do deploy these weapons against us.
Besides a mass exodus of personnel from the military would hamper their efforts at controlling the populace. Just think of the weapons, ammunition and equipment they’d bring with them.

JF
Guest
JF

Marty, You should not comment on military matters such as you have. Clearly you have no understanding of the ability of the US Military. Yes, against another power they could demolish infrastructure, communication, supplies and kill countless. But no country has ever had a military that could sustain domination over a sustained committed revolt against actual or perceived tyranical agression. Unless, they killed everybody. To start, every Soldier, Sailor, Airman and Marine has sworn an oath to protect the constitution of the United States against emenies foreign and domestic. Most would follow orders from above initially. Once they perceived that… Read more »

George Steele
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George Steele

The only reason governments want guns taken away is that they plan to do something for which they richly deserve to be shot.

Clifffalling
Guest
Clifffalling

“Making new criminals every day” the California state motto. I always get the the heebie jeebies when I have to go there with my wife. I still carry, my white privelage and nice car will keep me from attracting unwanted attention, but man I can’t stand going there. It’s a whole other country.

DW
Guest
DW

The funny thing here is this clown Becerra is taking a big chance on losing, and if he loses which I honestly think he will then it will open the door to eliminate these mag cap bans throughout the country. Being it is unconstitutional to begin with and just plain stupid because it only affects those that actually abide by the law it will serve him right, especially being from CA. Dumb ass liberals will never learn. Start targeting the people who need to be targeted, and that isn’t law abiding gun owners.

m.
Guest
m.

repeat: for caliph-agnia, gun control is about protecting dhimmi-rat criminals from danger while they do business. they don’t want their constituents & relatives (vo-tuhs) shot up.

Oldvet
Guest
Oldvet

I still say Red Flag him and his minions .

Ken
Guest
Ken

“This is errr Constitutional raighttt!” Hick jokes aside, it actually feels weird that California would even allow high-capacity. One moment I was celebrating for the lifting of the ban, but it felt really uncomfortable shortly after. Perhaps we are all accustomed into this gun-free culture in California, so let it stay the way it is.

Randy Southern
Guest
Randy Southern

It’s not about what comeyfornia wants it’s about our freedoms and liberties being attacked by liberals who coddle criminals and punish law abiding citizens. We all have the constitutional right to exercise our 2nd amendment rights, and the whiney assed liberals in comeyfornia have no right attacking anyone who does just that period. I think what we really need is a ban on liberals so that we might actually maintain a balance.

Core
Guest
Core

Ken, you are not doing a good job maintaining your “spine” for your constitutional freedoms. You are right: the subjugated get used to being coddled, and nanny’d under the facade of security. Your “comfort” is a fantasy that has been sold to you by leadership who is keen to build dependence on the cycle of big government reliance. You will see criminals use whatever they can steal, and fabricate to predate on society: make no mistake in that bans will never slow crime, it will only allow the law abiding to be subjugated by violent crime and criminal leadership (tyrants).… Read more »

Wild Bill
Guest
Wild Bill

@Ken, There is no “allow” to it. We do not have Civil Rights because any government “allows it”.

Matthew Hoy
Guest
Matthew Hoy

It would’ve been easier on you Dean if you’d just read my analysis here: https://restrictedarms.com/2019/04/will-the-ninth-circuit-put-a-halt-to-the-magazine-purchase-frenzy/ that I posted the day before the stay was issued.

Max Von Weltzin
Guest
Max Von Weltzin

I really don’t care what immoral and illegal laws Kalifornia dreams up against guns. I will own whatever type I want. It is my God given right to decide how I choose to protect myself and my family. Not some liberal with a mental disorder.

Gregory williams
Guest
Gregory williams

Criminals don’t care about laws you can make all you want and they will still do what they want please leave law abiding citizens alone

Green Mtn. Boy
Guest
Green Mtn. Boy

He did it to prevent the Leftist 9 th. circus from overruling him thus protecting the citizens,check mate the v9 th. circus.

chris williams
Guest
chris williams

Worse is when people abuse their first amendment rights in an effort to take down the second

Rod
Guest
Rod

I still cannot understand the hypocrisy of the commie left. You can murder a baby in the birthing process, but as far as protecting yourself against a violent home invader, firearms cannot be in the equation. More deaths are caused by drunk drivers than by legally owned firearms every year. I don’t see our elected commie representatives closing down any breweries or distilleries. And why aren’t the automakers being sued for building vehicles that will allow themselves to be driven by the inebriated? Why I ask you are our elected so afraid of a legally armed public? Inquiring minds want… Read more »

Glenn Pasiliao
Guest
Glenn Pasiliao

I Could not have said it any better. It’s nice to know that there are other like minded and logical persons still left in this corrupt state. I feel that the real issues aren’t being tabled because they have no idea with which to correct the true cause of gun violence. Meaning the criminal elements and the criminally Insane.

Randy
Guest
Randy

It’s simple. The goal is to give power to Groups like the Muslims and others who hate this country.

Mr. D.
Guest
Mr. D.

White Supremacists, is a love group?? What are the Muslims hate groups in America? Is Blue Isis, a hate group, because they seem to kill allot of people in America, with no consequences!!

Oldvet
Guest
Oldvet

YES

Ask a stupid question…

Richard Johnson
Guest
Richard Johnson

Sad when someone abuses their firearms rights to harm others, but that does not weaken my Constitutional rights. With three enlistments, Infantry during a war, then SF & MP, it grinds me when the Hillaries and Bernies of the world try to rob me of what I personally sacrificed to uphold.

The Democratic body are like the pigs in Animal Farm who try to change the writing on the wall to suit their anti-Constitutional, Socialist experiment.

I’m neither a big fan of Trump, but he’s a better choice for many reasons than the Commie I’ll we’re assaulted with as of late.

Glenn Pasiliao
Guest
Glenn Pasiliao

Mr. Johnson, firstly thank you for your Service and sacrifice. I sincerely am grateful for your insight And perspective. Godspeed