On Friday, September 22, 2023, U.S District Judge Roger Benitez again ruled California’s ban on so-called “large capacity magazines” unconstitutional. The law, California Penal Code 32310, was brought in by Proposition 63. The ruling was stayed for 10 days to allow the State of California to appeal. As expected, the State immediately appealed… almost like it was already sitting on a desk waiting to go.
You may recall Judge Benitez made the same ruling in 2017. It was affirmed on appeal by a three-judge panel of the 9th U.S. Circuit Court of Appeals. In 2019, Summary Judgement was granted to the plaintiffs. This led to California’s famous “Freedom Week” before the judgement was stayed, and the 9th Circuit re-heard the case en banc and reversed the decision. In 2022, the United States Supreme Court granted certiorari, vacated the appellate en banc decision, and remanded the case. The appeals court sent it back to Judge Benitez for rehearing in light of the New York State Rifle & Pistol Ass’n, Inc. v. Bruen case.
In response, the California’s governor/still-unannounced-2024-Democrat-presidential-nominee-wannabe’s reaction was as swift as it was predictable. Using as many insults, lies, exaggerations and rhetoric as he could squeeze into a single tweet, he also managed to cram in a plug for his absurd 28th Amendment gun-control proposal.
“BREAKING: California’s high-capacity magazine ban was just STRUCK DOWN by Judge Benitez, an extremist, right-wing zealot with no regard to human life.
Wake up, America.
Our gun safety laws will continue to be thrown out by NRA-owned federal judges until we pass a Constitutional Amendment to protect our kids and end the gun violence epidemic in America.”
A couple of highlights from the ruling itself.
Among the arguments the State made are that ammunition feeding devices, magazines, are not an integral part of the firearm and therefore, not covered by the Second Amendment. However, this is inconsistent as 10 round and less magazines are legal in the state, but not legal over 10 rounds. California’s Unsafe Handgun Act also requires new semiautomatic pistols to have an integrated magazine-disconnect mechanism, therefore rending the pistol unable to fire even a single shot without a magazine.
The State contends that large capacity magazines are not typically used in self-defense and are therefore not suitable for self-defense. The State’s expert concluded, without evidence or investigation using only anecdotal statements, that it was statistically rare for a person to fire more than 10 rounds in self-defense and that only 2.2 shots are fired on average.
Yet these were some of the compelling facts the 9th U.S. Circuit Court of Appeals en banc panel used to overturn the ruling.
The ruling itself (linked below) is 71 pages and is an excellent read. All the previous findings of fact and conclusions from the original 2017 ruling are included, now updated with Bruen’s text, history, tradition test applied. It also thoroughly examines the State’s arguments and details their flaws in law and logic. If you are interested in countering the gun-control rhetoric and nonsense, I strongly urge you read it for yourself.
Here is one line which encapsulates the sum of the ruling.
“There is no American tradition of limiting ammunition capacity and the 10-round limit has no historical pedigree and it is arbitrary and capricious.”
What happens now?
As expected, the State appealed this ruling, and the process begins anew. If this case follows the same path as it did before, it will first be heard by a three-judge panel, appealed by losing side, then reheard en banc. Keep in mind the previous initial ruling in the case was in 2017 and only granted certiorari in 2022.
We can also expect the 9th U.S. Circuit Court of Appeals to slow walk this case through the process, dragging it out as long as possible. After all, the current makeup of the United States Supreme Court is the same as when it ruled in Bruen. If (and ONLY IF) it is granted certiorari again, it would likely rule in favor of the plaintiffs. That means there is NO WAY IN HELL the gun-control community, which includes the majority of the judges on the 9th U.S. Circuit Court of Appeals, is going to let this case anywhere near the Supreme Court until the Court has a majority of liberal leaning Justices to support their decision.
With this I’m going to point out the obvious again. Fighting to get your rights back after they have been taken away is a fool’s errand. At BEST you have a very long and extremely expensive legal battle with little chance of succeeding, no matter how egregious the constitutional or legal issues are. The only people winning are the lawyers. Meanwhile, regular law-abiding citizens have lost their rights and ability to properly defend themselves and their families.
The ONLY way to keep this from happening again is to STOP electing people who will not protect our natural, constitutionally protected rights.
Bob
https://michellawyers.com/wp-content/uploads/2023/09/2023-09-22-Decision-Signed-by-Judge-R.-Benitez2263869.1.pdf
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Tag: #StandardCapacityMagazine
California’s Week Of Freedom
It was a strange and wonderful week here in the People’s Republik of Kalifornistan. For a very short period of time, ordinary law abiding citizens in the state were able to legally purchase standard capacity magazines. Following a federal court ruling that the entire section of law covering the manufacturing, import, sale and possession of so-called “large capacity magazines” was unconstitutional, Californians up and down the state took advantage of the opportunity and stocked up on magazines. But the celebration was short lived. While possession is still legal, sales are no longer allowed. Now it’s the state’s turn and there will be hell to pay.
In U.S District Judge Roger Benitez’s summary judgment, he declared California Penal Code 32310 unconstitutional and enjoined enforcement of the law. This section of the Penal Code outlaws everything from the manufacture, sale, import, borrowing, etc. to the simple possession of any magazine capable of holding more then 10 rounds.
The ruling itself was masterfully and elegantly worded and thoroughly debunked the State’s supposed evidence of a public safety interest in denying standard capacity magazines to law-abiding citizens in the state. He declared that standard capacity magazines were in fact protected as arms in the context of the Second Amendment. Something most of us already understood.
The net result was that Judge Benitez’s ruling once again made it legal to purchase and possess standard capacity magazines in California. Immediately after the Friday ruling, the more constitutionally inclined retailers began offering these magazines for sale. Others decided to wait a few more days to see what the state’s response would be and for the lawyers to chime in. By the first of the week, retailers up and down California began to digest the ruling and began selling. Out of state retailers, including the biggest names in online and brick & mortar stores also lifted their restrictions on selling standard capacity magazines to California residents.
Long lines formed at California gun shops and additional shipments from distributers were rushed in. Online retailer’s inventories from across the country were quickly cleaned out of just about every make and style of magazine. The most conservative estimates I’ve seen to date indicate that hundreds of thousands of California residents purchased a minimum of one to two MILLION standard capacity magazines.
Of course, the State of California wasn’t going to sit by and let this happen. They demanded a stay of the ruling from Judge Benitez, which was granted by the end of the week. However, it wasn’t exactly the result the State wanted. While Judge Benitez stayed the first two sections of Penal Code 32310 (manufacturing and selling), he left in place the judgment against possession. Judge Benitez also specifically protected those who had sold, imported and purchased during this brief window of legality.
Both of Judge Benitez’s rulings are a significant victory for California residents. His logic was well thought out and tied to not only the Second Amendment, but to the realities of self-defense and crime in the current day. If you haven’t read it – yes, I understand it is 86 pages long – I strongly suggest you do. The link is at the bottom of this article. Reading this will help you to understand not only the flaws in the gun control zealots logic used to justify these infringements, but in your own rights.
This is an excellent and important ruling, but it is not the final word on the topic. The State of California is not simply going to accept this ruling and go away. Magazine capacity is the cornerstone of modern gun control and if it fails, it will have significant ripple effects in California and around the country.
This ruling is already being appealed to the Ninth Circuit Court of Appeals – also known as the Nutty Ninth. As we all know, the Ninth Circuit is no friend of the Second Amendment and has already ruled against just about every gun rights appeal, even if it violates the Constitution, Second Amendment or the precedents set in Heller and McDonald. We can absolutely count on a reversal from the Ninth Circuit, which will need to be appealed to the U.S. Supreme Court.
So while we’re all enjoying this little victory as the lawyers are ramping up to fight the pre-destined loss in the Ninth Circuit and appeal to the Supreme Court, I’d like to point out something. Why are we in this position in the first place?
If even the extremely low estimates of several hundred thousand magazine purchasers are true, where the HELL where these people when Prop 63 was being voted on? Where the HELL where these people during the Veto Gunmageddon petition drive to put repeal questions on the ballet for these insane, do-nothing but take rights away from law-abiding citizens laws? Where the HELL where all of these people when candidates were running against the gun control zealot politicians? If everyone was so willing to run down to their local gun shop or hop online and order magazines for themselves, why didn’t this same mass of people get involved and stop the local, state and federal gun control zealots from passing the laws in the first place?
I’ll say what I’ve said before. Fighting to get your rights back after they have been lost is a fool’s errand at best. At BEST you have a long and expensive legal battle with very little chance of actually succeeding, no matter how egregious the constitutional or legal issues are.
Law-abiding Californians caught a huge break with Judge Benitez, but it could have very easily gone the other way. Meanwhile we have a Ninth Circuit with a well-documented history of reversing anything to do with Second Amendment rights. Our hope now lay with the Supreme Court, which may or may not even accept it.
We can also count on a vindictive People’s Republik of Kalifornistan to work on ways to punish every one of us who enjoyed this brief window of freedom and invent new and ingenious ways of eliminating our Second Amendment rights once again.
In other words – it’s time for everyone to get off their asses and start fighting to keep our rights.
Bob
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