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: #Unconstitutional
Bruen? What’s Bruen? (Hard Left Turn At Albuquerque Part 2)
True to political form, New Mexico’s leftist governor issued an updated executive order on September 15th, another Friday afternoon. This comes two days after a Federal judge issued a temporary restraining order against a portion of the original executive order, the section which banned all open or concealed carry in Albuquerque and the rest of Bernalillo County. The new order modifies this section to only include public parks or playgrounds, or other public areas provided for children to play in.
The opposition to the governor’s original “public health emergency” executive order was loud and swift. Many within her own Democrat party including the Albuquerque Mayor, Police Chief, the Bernalillo County District Attorney and Sheriff opposed it. Even the Democrat State Attorney General spoke out against the order and said he would not defend it because of its unconstitutionality.
With this order modification, it will be interesting to see if those who previously opposed gun-control by public health emergency executive order are now okay with this limited version.
It’s worth noting that none of the tragic shootings of children cited by the governor as her motivation for banning the open or concealed carry of firearms occurred in a public park or playground.
Let’s be crystal clear about what is happening here. Ever since the United States Supreme Court ruling in New York State Rifle & Pistol Association, Inc. v. Bruen in 2022, gun-control states have been passing “Bruen response laws”. Not to comply with it mind you, but to circumvent it and make the ruling moot. A common feature among them is to declare virtually all public and privately owned space outside your home a “sensitive space” where firearms are not allowed, thus negating the whole concept of being able to carry a firearm for personal protection outside the home.
The good news is most of the elements of these laws are currently held up in litigation as they clearly violate Bruen. A bold new solution to get around these legislative gun-control laws being held up in the courts was needed. Enter the public health emergency and a governor who leans far enough to the left to sign her name to it.
I have zero doubts this concept came from the very same privately funded gun-control institutions who are behind the majority of gun-control legislation in this country. This may have been why New Mexico’s governor wasn’t phased by her own Attorney General saying he would not defend it. These groups have also been providing free legal services to defend their gun-control products all over the country. All they need is a politician’s signature.
The fact that the governor has no intention of calling a special legislative session this year to address rising crime, violence or public safety is further evidence her public health emergency is an end run around Bruen. She will instead prioritize “gun safety measures” in the 2024 session including a prohibition on automatic weapons, a 14-day waiting period for gun sales and a ban on selling guns to those under 21. Of course, none of these are or has been a factor in the crime and violence problem the state has been facing.
One section untouched by the temporary restraining order is the monthly inspections of firearms dealers to ensure compliance with gun laws. While there has never been any implication of firearms dealer’s operations contributing to the current crime and violence situation, authorizing monthly state inspections is another gun-control priority measure to increase costs for dealers and consumers through state licensing and regulation. I am hopeful the National Shooting Sports Foundation (NSSF) will make good on their promise to file suit against this before the state begins inspections.
Less noticed at the bottom of the updated executive order is a section stating that free trigger locks shall be made available to each firearm owner, limit of one each, just call or email the state. Groundbreaking thinking on behalf of the governor of New Mexico? Well….
Did you know you can get FREE gun locks from just about every police department in the country, including the Albuquerque Police Department and Bernalillo County Sheriff’s Department? No fuss, no muss, just go in and ask for them. How is this possible? Because the NSSF, the trade association for the firearms industry provides them for free.
“Project ChildSafe is a real firearms safety solution that helps make communities safer. Since 1999, more than 15,000 law enforcement agencies have partnered with the program to distribute more than 37 million firearm safety kits to gun owners in all 50 states and five U.S. territories.”
Please consider the governor has said she would extend this public health emergency order at the end of the 30-day period based on the results on crime.
Crime and violence are complicated community issues. They have been made worse by years of criminal laws being loosened, no-bail laws passed, the election of soft-on-criminal prosecutors defunding the police, violent offenders not being arrested or prosecuted, convicted criminals let out of prisons and prisons being closed.
To think that a 30-day public health emergency order that does NOTHING but disarm the law-abiding citizenry in public will do anything but make crime and violence WORSE is insanity. If gun-control by executive order is allowed to stand, everyone around the country better start getting used to saying:
It’s just 30-days to flatten the curve.
Bob
*Image from Gun Owners of New Mexico
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Hard Left Turn At Albuquerque
Friday afternoon, September 8th, New Mexico’s left fringe governor issued Executive Order 2023-130 Declaring State of Public Health Emergency Due To Gun Violence. With this order, she banned the carrying firearms in public, both open carry and licensed concealed carry in Albuquerque as well as the rest of Bernalillo County. This, along with some other new state level controls, will be in effect for 30 days, at which point she will decide if it will be renewed.
While it is painfully obvious this order is completely unwarranted and unconstitutional, the governor issued it anyway. The governor admitted in her press conference that she expects to be sued over this and did not expect criminals will follow this order, “but this sends a message”.
The governor said gun owners still would be able to transport guns to private locations such as a gun range or gun store if the firearm is in a container or has a trigger lock or mechanism making it impossible to discharge. The state police would be responsible for enforcing what amount to civil violations and carry a fine of up to $5,000.
The executive order, which itself is full of inaccuracies, sneaks in another gun-control priority as well. It orders monthly inspections of firearms dealers to ensure compliance with gun laws, something the State of New Mexico has never had legal authority to do before. Authorizing monthly inspections is a step towards state licensing and regulation of firearms dealers.
As justification for this massive overreach of state executive authority, the governor sited the deaths of three children, two in Albuquerque and one in three counties away over a three-month period. The two local shootings were from an apparent road range incident where arrests have been made and the other an apparent targeted drive by shooting. Two of the three were committed by underage shooters who are already prohibited from purchasing or possessing firearms. At least one was a confirmed gang shooting.
The purposeful timing of a Friday afternoon meant there would be no chance of getting a court injunction against the order before Monday. As of today, at least two lawsuits have already been filed against this order.
Keep in mind this is the same governor who in 2020 criticized the Trump administration for sending federal law enforcement officers to assist the overwhelmed Albuquerque police with crime and violence. “If the Trump administration wishes to antagonize New Mexicans and Americans with authoritarian, unnecessary and unaccountable military-style ‘crackdowns,’ they have no business whatsoever in New Mexico.” Ironic isn’t it?
Republicans in the New Mexico legislature are already attempting to file articles of impeachment against the governor. However, with the Roundhouse firmly dominated by Democrats in a super-majority, the chances of this being successful is somewhere between none and nil. Current state law does not allow the governor to be recalled and unsurprisingly, bills to permit this have failed in previous legislative sessions.
The District Attorney and Police Chief of Albuquerque, both Democrat appointees, have publicly stated they will not enforce this unconstitutional order. The Democrat Sheriff of Bernalillo County stated “I have reservations regarding this order.” A growing number of other Democrats and left-wing talking heads have also publicly criticized the overreach of this order.
Of course, there is absolutely zero logic behind this. Disarming the law-abiding residents of an entire county while in public, while acknowledging the criminals, who are already breaking the law by carrying firearms will not, only disarms their intended victims and makes it easier and safer (for the criminals) to commit their crimes. The real answer has always been enforcing the laws already on the books and holding those who break them responsible for their own actions.
When you’re looking at this action, keep in mind using a public health emergency to address so-called “gun violence” through radical gun-control measures has been discussed since the beginning of the Covid pandemic.
This was not done in a vacuum. It was absolutely done in coordination with the extreme left coast gun-control organization, the Democrat party, and the current administration. This is nothing more than a litmus test to see if public health emergencies can be used to do an end run around the United States Supreme Court’s rulings against unconstitutional gun control laws.
The off-the-left California governor is using a proposed 28th Amendment to the United States Constitution to supersede the Second Amendment and implement massive nationwide gun-control as part of his yet-to-be-announced 2024 presidential run. It is a bold and outrageous proposal full of lies made to entice gun-control advocates and falsely placate Second Amendment advocates.
You have to wonder if the New Mexico governor is also planning on using this as a steppingstone for her own political motives, such as a Vice President or senate run, a cabinet position or US ambassador posting with the next administration, something she missed out on due to her own scandals with the current administration.
If you look at the bigger picture of gun-control, this is a logical step. It’s no accident that criminal laws have been loosened, no-bail laws passed, soft on criminal prosecutors have been elected, lawbreakers not arrested or prosecuted, police departments defunded, convicted criminals let out of prisons and prisons closed. The result has been uncontrolled crime sprees and violence that have cost lives and livelihoods, and made city streets unsafe for anyone who dares to brave them. At some point, some bold action must be taken before the people figure out these policies are what is getting them killed.
Guess what the bold action is? Blaming the law-abiding citizen and their firearms.
The good news is Albuquerque/Bernalillo County residents are stepping up. As I write this they are rallying and coordinating to stop this in its tracks.
This isn’t just about the rights in one city or county, it’s about the rights of the entire nation.
This isn’t just about one extremist gun-control politician, it’s about all the gun-control politicians.
This isn’t about the ability to protect yourself from crime and violence in one city, it’s about the ability of every American to be able to protect themselves from crime and violence at home AND in public in EVERY city.
One last note. Watch what is going on here carefully. While some may be against THIS unconstitutional gun-control measure, it doesn’t mean they aren’t 100% willing to replace it with another unconstitutional one.
Bob
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