Blow Struck for Civil Rights In California

Yesterday, Judge Roger Benitez of the U.S. District Court for the Southern District of California handed down an 86-page decision holding that California’s ban on magazines that contain more than ten rounds violates the Second Amendment. Judge Benitez’s decision is closely reasoned and unsparing in its dismantling of the feeble evidentiary case made on behalf of the state. It is premised largely on the U.S. Supreme Court’s decision in District of Columbia v. Heller.

All Californians, like all citizens of the United States, have a fundamental Constitutional right to keep and bear common and dangerous arms.
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In Heller, the U.S. Supreme Court provided a simple Second Amendment test in crystal clear language. It is a test that anyone can understand. The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual “in common use” “for lawful purposes like self-defense.”
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It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are “yes,” the test is over. The hardware is protected.

Millions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense. This is enough to decide that a magazine able to hold more than 10 rounds passes the Heller test and is protected by the Second Amendment. The simple test applies because a magazine is an essential mechanical part of a firearm. The size limit directly impairs one’s ability to defend one’s self.

Typically, a handgun’s magazine size varies with the size of the gun. A small gun’s grip is not big enough to hold a large magazine. Thus, my carry pistol, a Sig Sauer P938, has a seven-round magazine. My full size pistol, an Armalite AR-24, comes with magazines that hold 15 rounds. Larger, extended magazines can also be purchased. Such “large” magazines are extremely common, as Judge Benitez documents.

The opinion is sometimes entertaining, as when Judge Benitez rejects the argument that firearms with “large” magazines are dangerous:

Nothing in the Second Amendment makes lethality a factor to consider because a gun’s lethality, or dangerousness, is assumed. The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.

The argument for limitations on magazine capacity relates to mass shooters–extraordinarily rare events, compared with the millions of cases of lawful self-defense. The theory is that if a mass shooter has to reload, he must pause, and during the pause he can be overcome. This is almost entirely a fantasy, since mass shooters plan in advance, bringing multiple firearms and multiple loaded magazines. Even I, a rank amateur, can swap out a magazine in less than two seconds. A homeowner, in contrast, is unlikely to have a stack of pre-loaded magazines close at hand. Judge Benitez makes the point eloquently:

The State argues that smaller magazines create a “critical pause” in the shooting of a mass killer. “The prohibition of LCMs helps create a ‘critical pause’ that has been proven to give victims an opportunity to hide, escape, or disable a shooter.” Def. Oppo., at 19. This may be the case for attackers. On the other hand, from the perspective of a victim trying to defend her home and family, the time required to re-load a pistol after the tenth shot might be called a “lethal pause,” as it typically takes a victim much longer to re-load (if they can do it at all) than a perpetrator planning an attack. In other words, the re-loading “pause” the State seeks in hopes of stopping a mass shooter, also tends to create an even more dangerous time for every victim who must try to defend herself with a small-capacity magazine. The need to re-load and the lengthy pause that comes with banning all but small-capacity magazines is especially unforgiving for victims who are disabled, or who have arthritis, or who are trying to hold a phone in their off-hand while attempting to call for police help. The good that a re-loading pause might do in the extremely rare mass shooting incident is vastly outweighed by the harm visited on manifold law-abiding, citizen-victims who must also pause while under attack.

Judge Benitez’s entire decision is well worth your time. We live in a constitutionally dangerous era: the Democratic Party is committed to repealing, in effect, both the First* and Second Amendments. Rarely has control over the federal judiciary been so important. Which is one of several reasons why it is critical that President Trump be re-elected.

*If you think that is an overstatement, consider that every Democratic presidential candidate denounces the Supreme Court case that held the federal government could not constitutionally ban the showing of a movie on the ground that it was critical of presidential candidate Hillary Clinton.

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