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In one of the strongest judicial statements in favor of the Second Amendment to date, Judge Roger T. Benitez of the U.S. District Court for the Southern District of California determined on Friday that California’s ban on commonly possessed firearm magazines violates the Second Amendment.

The case is Duncan v. Becerra.

The NRA-supported case had already been up to the U.S. Court of Appeals for the Ninth Circuit on the question of whether the law’s enforcement should be suspended during proceedings on its constitutionality. Last July, a three judge panel of the Ninth Circuit upheld Judge Benitez’s suspension of enforcement and sent the case back to him for further proceedings on the merits of the law itself.

Judge Benitez rendered his opinion late Friday afternoon and handed Second Amendment supporters a sweeping victory by completely invalidating California’s 10-round limit on magazine capacity. “Individual liberty and freedom are not outmoded concepts,” he declared.

In a scholarly and comprehensive opinion, Judge Benitez subjected the ban both to the constitutional analysis he argued was required by the U.S. Supreme Court in District of Columbia v. Heller and a more complicated and flexible test the Ninth Circuit has applied in prior Second Amendment cases.

Either way, Judge Benitez ruled, the law would fail. Indeed, he characterized the California law as “turning the Constitution upside down.” He also systematically dismantled each of the state’s purported justifications for the law, demonstrating the factual and legal inconsistencies of their claims.

NRA-ILA Executive Director Chris W. Cox hailed the decision as a “huge win for gun owners” and a “landmark recognition of what courts have too often treated as a disfavored right.”

“Judge Benitez took the Second Amendment seriously and came to the conclusion required by the Constitution,” Cox said. “The same should be true of any court analyzing a ban on a class of arms law-abiding Americans commonly possess for self-defense or other lawful purposes.”

Unfortunately, Friday’s opinion is not likely to be the last word on the case. The state will likely appeal to the Ninth Circuit, which has proven notably hostile to the Second Amendment in past decisions.

Nevertheless, the thoroughness of Judge Benitez’s analysis should give Second Amendment supporters the best possible chance for success in appellate proceedings, particularly if the case ultimately lands before the U.S. Supreme Court.

In the meantime, Friday’s order prohibits California from enforcing its magazine restrictions, leaving its law-abiding residents safer and freer, at least for the time being.


Opinion: Here

"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.” District of Columbia v. Heller, 554 U.S. 570, 624 (2008); Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1271 (2011) (Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and
tradition, not by a balancing test such as strict or intermediate scrutiny.”). 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."

and

"In a peaceful society, a 10-round limit may not be severe. When thousands of people are rioting, as happened in Los Angeles in 1992, or more recently with Antifa members in Berkeley in 2017, a 10-round limit for self-defense is a severe burden. When a group of armed burglars break into a citizen’s home at night, and
the homeowner in pajamas must choose between using their left hand to grab either a telephone, a flashlight, or an extra 10-round magazine, the burden is severe. When one is far from help in a sparsely populated part of the state, and law enforcement may not be able to respond in a timely manner, the burden of a 10-round limit is severe. When a major earthquake causes power outages, gas and water line ruptures, collapsed bridges
and buildings, and chaos, the burden of a 10-round magazine limit is severe. When food distribution channels are disrupted and sustenance becomes scarce while criminals run rampant, the burden of a 10-round magazine limit is severe. Surely, the rights protected by the Second Amendment are not to be trimmed away as unnecessary because today’s litigation happens during the best of times. It may be the best of times in Sunnyvale; it may be the worst of times in Bombay Beach or Potrero. California’s ban covers the
entire state at all times."

so for the time being, full cap mags are legal?

Does this mean that Commiefornia can once again be known as California? Maybe... Maybe not. The state is still run by idiots.

Anyone doubt the 9th Circus will find some ganja inspire logic to overturn this?

Now we need a Judge Benitez in NY

Did any one else feel a sudden disturbance in The Force?

Because I sure did.

I semi read the decision.

In the context given, the focus seemed to be on self defense shootings in the home. At least that was the set up in the facts where homeowners where using guns to shot at bad guys and ran out of ammo based on capacity. Unless it was somewhere I missed, it wasn't saying you could carry out in public with whatever capacity you wanted but it wasn't limited either.

I like what he said about the the limit being 10 rounds. He said that if the state rationalized that 10 rounds was ample, by the same logic they could step it down to a single shot too.

So when do retailers start to sell high caps in CA? Probably never since this will be appealed and this decision may get stayed in the interim.

I posted this at the same time over in the Gun Control section.
I think the decision is very well written, citing example after example of specific cases in which a revolver or a legal-size magazine was clearly not enough.
The judge weighs the potential benefit of decreasing the risk of mass shootings with the much, much more common use of firearms in self-defense.
He questions whether the state or individuals following the 2nd amendment should have priority in this decision.
For the time being, full-cap mags are legal, and enforcement of the limitation is enjoined.
Let’s hope and pray this sticks, either in the 9th circuit in an en banc decision or at the Supreme Court.

quote:

Originally posted by XinTX:
Anyone doubt the 9th Circus will find some ganja inspire logic to overturn this?

The good thing is that the judge crafted a very thorough and thoughtful opinion, going through all the requirements of Heller point by point and showing how the CA law did not pass muster. Even if the 9th reverses, the judge has created a great record for the Supreme Court. We just have to hope they are finally ready to start hearing 2A cases again. This one would be a great precedent for them to continue building on the Heller.McDonald line of cases - a natural stepping stone to striking down may issue licensing schemes and assault weapon bans.

I wonder how long it's going to take for this case to percolate up through the 9th circuit to the SCOTUS? That's the only way it will ever really be settled.

That is great news. It reminds me of Churchill's quote. "It is not the end, nor the beginning of the end, but perhaps it is the end of the beginning." 5-4 Supreme court, we are on our way. Come on Ruthie, let's make it 6-3.

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The opening of the Judge's finding sets the stage rather well. The entire decision is 86 pages. While I am not a lawyer, I learned a lot from reading it and wanted to share a direct link to encourage others to read the Judge's decision rather than rely on what News organizations decide is worthy of being shared:

www.MichelLawyers.com/wp-content/uploads/2019/03/Duncan-2019-03-29-Order-Granting-Plaintiffs-MSJ.pdf?fbclid=IwAR0B1K9uqTLOdzJieJ6BMiBtRS0jdYT2id4OKm6suWAzGqo1V9eoe_wL9aA

Background on the Judge, the Honorable Roger T. Benitez:

Born in Havana, Cuba, Benitez received an Associate of Arts degree from Imperial Valley College in 1971, a Bachelor of Arts degree from San Diego State University in 1974, and a Juris Doctor from Western State University College of Law in 1978. Benitez was in private practice in Imperial County, California from 1978 to 1997. He was a judge on the California Superior Court from 1997 to 2001, also serving as an instructor for Imperial Valley College from 1998 to 1999.

In 2001, Benitez was appointed by the United States District Court for the Southern District of California to serve as a United States Magistrate Judge. Then, on May 1, 2003, he was nominated by President George W. Bush to a new seat on the Southern District of California. Benitez was confirmed by the United States Senate on June 17, 2004 and received his commission on June 21, 2004. He assumed senior status on December 31, 2017.

As an FYI, Imperial Valley is an agricultural area located between San Diego and Yuma, AZ.

This quote opened the Judge's decision:

Individual liberty and freedom are not outmoded concepts.
“The judiciary is –and is often the only –protector of individual rights that are at the heart of our democracy.”
--Senator Ted Kennedy, Senate Hearing on the Nomination of Robert Bork, 1987.

1 INTRODUCTION
As two masked and armed men broke in, Susan Gonzalez was shot in the chest. She made it back to her bedroom and found her husband’s .22 caliber pistol. Wasting the first rounds on warning shots, she then emptied the single pistol at one attacker. Unfortunately, now out of ammunition, she was shot again by the other armed attacker. She was not able to re-load or use a second gun. Both she and her husband were shot twice. Forty-two bullets in all were fired. The gunman fled from the house—but returned.He put his gun to Susan Gonzalez’s head and demanded the keys to the couple’s truck.

When three armed intruders carrying what look like semi-automatic pistols broke into the home of a single woman at 3:44 a.m., she dialed 911. No answer. Feng Zhu Chen, dressed in pajamas, held a phone in one hand and took up her pistol in the other and began shooting. She fired numerous shots. She had no place to carry an extra magazine and no way to reload because her left hand held the phone with which she was still trying to call 911. After the shooting was over and two of the armed suspects got away and one lay dead, she did get through to the police. The home security camera video is dramatic.

A mother, Melinda Herman,and her nine-year-old twins were at home when an intruder broke in. She and her twins retreated to an upstairs crawl space and hid. Fortunately, she had a .38 caliber revolver. She would need it. The intruder worked his way upstairs, broke through a locked bedroom door and a locked bathroom door, and opened the crawl space door. The family was cornered with no place to run. He stood staring at her and her two children. The mother shot six times, hitting the intruder five times, when she ran out of ammunition. Though injured, the intruder was not incapacitated. Fortunately, he decided to flee.

A) A Need for Self-Defense
In one year in California (2017), a population of 39 million people endured 56,609 robberies, 105,391 aggravated assaults, and 95,942 residential burglaries. There were also 423 homicides in victims’ residences. There were no mass shootings in 2017. Nationally, the first study to assess the prevalence of defensive gun use estimated that there are 2.2 to 2.5 million defensive gun uses by civilians each year. Of those, 340,000 to 400,000 defensive gun uses were situations where defenders believed that they had almost certainly saved a life by using the gun. Citizens often use a gun to defend against criminal attack. A Special Report by the U.S. Department of Justice, Bureau of Justice Statistics published in 2013, reported that between 2007 and 2011 “there were 235,700 victimizations where the victim used a firearm to threaten or attack an offender.” How many more instances are never reported to, or recorded by,authorities?According to anotherU.S. Department of Justice, Bureau of Justice Statistics, Special Report, for each year between 2003 and 2007, an estimated 266,560 burglaries occurred during which a person at home became a victim of a violent crime or a “home invasion.”
“Households composed of single females with children had the highest rate of burglary while someone was at home.” Of the burglaries by a stranger where violence occurred, the assailant was armed with a firearm in 73,000 instances annually (on average). During a burglary, rape or sexual assault occurred 6,387 times annually (on average), while a homicide occurred approximately 430 times annually (on average).

Fortunately, the Second Amendment protects a person’s right to keep and bear firearms. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. “As interpreted in recent years by the Supreme Court, the Second Amendment protects ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’” At the core of the Second Amendment is a citizen’s right to have in his and her home for self-defense common firearms. Heller, 554 U.S. at 629. “[O]ur central holding in Heller [is] that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).

As evidenced by California’s own crime statistics, the need to protect one’s self and family from criminals in one’s home has not abated no matter how hard they try. Law enforcement cannot protect everyone. “A police force in a free state cannot provide everyone with bodyguards. Indeed, while some think guns cause violent crime, others think that wide-spread possession of guns on balance reduces violent crime. None of these policy arguments on either side affects what the Second Amendment says, that our Constitution protects ‘the right of the people to keep and bear Arms.’” However, California citizens, like United States citizens everywhere, enjoy the right to defend themselves with a firearm, if they so choose. To protect the home and hearth, citizens most often choose a handgun, while some choose rifles or shotguns.

B) Are 10 Rounds Always Enough?

If a law-abiding, responsible citizen in California decides that a handgun or rifle with a magazine larger than 10 rounds is the best choice for defending her hearth and home, may the State deny the choice, declare the magazine a “nuisance,” and jail the citizen for the crime of possession? The Attorney General says that is what voters want in hopes of preventing a rare, but horrible, mass shooting. The plaintiffs, who are also citizens and residents of California, say that while the goal of preventing mass shootings is laudable, banning the acquisition and possession of magazines holding more than 10 rounds is an unconstitutional experiment that poorly fits the goal. From a public policy perspective, the choices are difficult and complicated. People may cede liberty to their government in exchange for the promise of safety. Or government may gain compliance from its people by forcibly disarming all. In the United States, the Second Amendment takes the legislative experiment off the table. Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights. “An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity.”

Wow, what a very impressive opinion, from a likely very impressive judge!

How long has this guy been around? Certainly not an Obummer appointee?

Did Hell just freeze over?

quote:

Originally posted by mark60:
Now we need a Judge Benitez in NY

No doubt!

Per the Sacramento Bee, Bush 43 appointed him. Benitez has been a 2A hero before - I believe on carry permits.

http://www.sacbee.com/latest-n...4.html?ref=hvper.com

Trump needs to promote this judge to the 9th.

Perhaps the good Judge has held his hand until the proper time to play his cards.

So this is good, right? We're happy about this, correct? Cause I'm pretty sure I'm happy about it.

Outfuckingstanding!