As California Begins Confiscation, a Lone Judge Defends the Second Amendment

By David French

Friday, June 30, 2017

As of yesterday evening, all that stands between the state of California and the criminalization of thousands of previously law-abiding state citizens is the opinion of a single federal judge. In a 66-page order, Judge Roger Benitez temporarily blocked a new California law that required citizens to surrender possession of any gun magazine capable of holding more than ten rounds of ammunition.

Remember how gun-controllers mock conservatives who claim that progressives really want to confiscate lawfully owned weapons? Well, someone forgot to tell California progressives to hide their radical cards. Last year the state amended its criminal law. It already banned the sale and transfer of large-capacity magazines. The new law applied to those magazines that were grandfathered in, legally possessed under previous law. As of July 1, 2017, any person who keeps a lawfully purchased and lawfully possessed large-capacity magazine risks a fine and up to one year in a county jail. Or, to quote the judge, “On July 1, 2017, any previously law-abiding person in California who still possesses a firearm magazine capable of holding more than 10 rounds will begin their new life of crime.”

The law, however, does play favorites. It exempts “active and retired law enforcement officers” (but not members of the military), “employees of armored car businesses,” and — incredibly — “movie and television actors when magazines are used as a prop.” Not even social justice can stop the Hollywood gravy train.

The little people, however, have but three choices: take the magazine out of the state (I’ll gladly accept donations to my Tennessee stash), sell it to a licensed firearm dealer, or surrender it to law enforcement for destruction. To absolutely no one’s surprise, gun owners appear to be resisting the law. A Sacramento Bee report summarizes their mood: “Talk to gun owners, retailers and pro-gun sheriffs across California and you’ll get something akin to an eye roll when they’re asked if gun owners are going to voluntarily part with their property because Democratic politicians and voters who favor gun control outnumber them and changed the law.”

The Bee quoted UCLA professor Adam Winkler who noted that gun owners tend to “ignore” magazine bans. “We see no compliance from gun owners,” he said. “As best as we can tell, no gun owners are giving up their high capacity magazines or selling them out of state.”

In fact, blue-state gun owners are becoming known for their passive resistance. When Connecticut required registration of so-called assault weapons, as few as 15 percent of assault-weapon owners complied.

Thanks to Judge Benitez, California’s gun owners have a brief reprieve. His opinion should be required reading for anyone who seeks to understand the meaning and purpose of the Second Amendment. Judge Benitez, quite simply, “gets it,” and his opinion is a tour de force that not only critiques Ninth Circuit jurisprudence (even as he applies it), it also eviscerates claims that California’s ban will have any meaningful impact on public safety.

The law’s advocates claim that large-capacity magazines don’t have “legitimate self-defense value.” Judge Benitez responds with actual evidence of their use in self-defense. The law’s advocates claim that studies of mass shootings show that large-capacity magazines render mass shootings particularly dangerous. Judge Benitez takes apart those studies, showing that the impact of large-capacity magazines is exaggerated and that the evidence is woefully deficient that banning them would have any meaningful impact on public safety:

To sum up, of the 92 mass killings occurring across the 50 states between 2013 and 2009, only ten occurred in California. Of those ten, the criminalization and dispossession requirements of section 32310 of the new law would have had no effect on eight of the shootings, and only marginal good effects had it been in effect at the time of the remaining two shootings. On this evidence, section 32310 is not a reasonable fit. It hardly fits at all. It appears on this record to be a haphazard solution likely to have no effect on an exceedingly rare problem, while at the same time burdening the constitutional rights of other California law-abiding responsible citizen-owners of gun magazines holding more than ten rounds.

Moreover, the Court directly addresses a vital purpose of the Second Amendment — that it stands as a firewall against tyranny. If a state removes effective, commonly used weaponry from public use, that firewall starts to crumble. This summary paragraph is near-perfect:

Violent gun use is a constitutionally-protected means for law-abiding citizens to protect themselves from criminals. The phrase “gun violence” may not be invoked as a talismanic incantation to justify any exercise of state power. Implicit in the concept of public safety is the right of law-abiding people to use firearms and the magazines that make them work to protect themselves, their families, their homes, and their state against all armed enemies, foreign and domestic. To borrow a phrase, it would indeed be ironic if, in the name of public safety and reducing gun violence, statutes were permitted to subvert the public’s Second Amendment rights — which may repel criminal gun violence and which ultimately ensure the safety of the Republic.

The case will move quickly to the Ninth Circuit, where gun owners’ prospects are more grim. Ninth Circuit case law is hopelessly convoluted. Indeed, it seems deliberately engineered to provide maximum flexibility to progressive state and local governments while still providing a veneer of judicial review. One hopes that the Supreme Court will break its recent habit of refusing to review gun cases and step in once again on the side of the Bill of Rights.

As I’ve written before, California is seceding from the Constitution. It is systematically attacking individual liberty in favor of secular progressive collectivism. First Amendment rights are already under comprehensive assault, and now it seeks to cross the Second Amendment Rubicon — moving from gun “control” to outright confiscation of previously lawfully owned magazines.

Gun owners are right to resist this law. The court was right to block it. As Judge Benitez noted, if he didn’t enjoin the statute, then “hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property. That is a choice they should not have to make. Not on this record.” To that I would simply add, not under this Constitution. California’s law cannot stand.