Mar 31, 2019 - In 2016 California banned the mere possession of +10rd magazines. Are enjoined from enforcing California Penal Code section 32310. Subdivision (c) of Section 32310 does not apply to an honorably retired sworn peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, or honorably retired sworn federal law enforcement officer, who was authorized to carry a firearm in the course and scope of that officer’s duties. “Honorably retired” shall have the same meaning as provided in Section.
Posted by2 months ago
Mini-analysis of the complete ruling striking down CA Penal Code 32310 - also, mad respect for the Honorable Roger T. Benitez
We all know the ruling yesterday and if you don't, where the fuck have you been? But the ruling itself is a 86 fucking page document. I know the vast majority of you people won't read it, but I actually highly recommend that you do because it's a goddamn work of art.
I sat down and read it, cover to cover, twice, and wanted to bring some highlights to you. A bit of a TL;DR/cliff notes version so that you can sound smart-ish the next time you're at the gun store.
The Honorable Roger T Benitez was born in Cuba, got an AA from Imperial Valley College, a BA from SD State, and his law degree from Western State.
Conducting private practice from '78 to '97, he has served as a judge since 1997 and was appointed to the Southern District of California in 2003 by G.W. Bush.
More than that, I don't really know much about the man. Info is fairly sparse on the internet.
The Ruling
Effectively, Benitez spends 86 pages tearing A.G. Becerra and his minions a new asshole. He looks at every argument the state made and completely dismantles it, far more effectively than the plaintiffs did even.
He also stands up for 2A over and over again while also calling out A.G. Becerra for lying, providing bad data, ignoring data, using data incorrectly, and twisting what data actually says. He takes a baseball bat to Mother Jones and calls out their lies for what they are while also disproving and dismissing their invented statistics.
Best of all - he lays the groundwork for more cases to come and does so in a wonderfully eloquent way. I'm an editor by profession and this document was fucking awesome.
Some of my favorite and something worth memorizing yourselves.
Side note - I can't remember how to cite legal docs, so I'm citing these like the Bible with page number followed by line. eg: '15:10-15' would mean Page 15, lines 10 to 15.
On to the good stuff.
In many places, Benitez outlines that guns are used for self-defense and this is a critical and guaranteed right.
Few would say that a 100 or 50-round rifle magazine in the hands of a murderer is a good idea. Yet, the “solution” for preventing a mass shooting exacts a high toll on the everyday freedom of ordinary law-abiding citizens. Many individual robberies, rapes, and shootings are not prevented by the State. Unless a law-abiding individual has a firearm for his or her own defense, the police typically arrive after it is too late. With rigor mortis setting in, they mark and bag the evidence, interview bystanders, and draw a chalk outline on the ground. But the victim, nevertheless, is dead, or raped, or robbed, or traumatized. 7:15-22
He also loves to make it clear that just because guns are dangerous, does not make them BAD.
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. “If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous.' 21:12-13
OVER AND OVER AGAIN he points out the absurity of 10 rounds as being the limit.
California law presently permits the lethality of a gun with a 10-round magazine. In other words, a gun with an 11-round magazine or a 15-round magazine is apparently too lethal to be possessed by a law-abiding citizen. A gun with a 10-round magazine is not. Missing is a constitutionally-permissible standard for testing acceptable lethality. The Attorney General offers no objective standard. 21:21-25
Don't forget logic though, Benitez points out the logic a lot too.
If the “too lethal” standard is followed to its logical conclusion, the government may dictate in the future that a magazine of eight rounds is too lethal. And after that, it may dictate that a gun with a magazine holding three rounds is too lethal since a person usually fires only 2.2 rounds in self-defense. This stepped-down approach may continue until the time comes when government declares that only guns holding a single round are sufficiently lacking in lethality that they are both “safe” to possess and powerful enough to provide a means of self-defense. 22:3-9
Remember people - we are the militia.
In addition to their usefulness for self-defense in the home, of course, larger capacity magazines are also lawful arms from home with which militia members would report for duty. Consequently, possession of a larger capacity magazine is also categorically protected by the Second Amendment 26:6-9
This section is LONG so I'll only qoute a small bit, but basically Benitez calls out the AG for shity research and bad history. It's lovely.
The State argues that the Heller test is a non-issue because the Heller test does not apply to historically-accepted prohibitions on Second Amendment rights. Large capacity magazines have been the subject of regulations since the 1930s according to the State. Based on this view of history, the State asserts that magazine capacity regulations are historically accepted laws beyond the reach of the Second Amendment. If its historical research is accurate, the State would have an argument.
...
History shows, however, restrictions on the possession of firearm magazines of any size have no historical pedigree. 26:16-alot
If you want a history lession, read the whole ruling because Benitez RIPS into the AG with all kinds of historical facts - my fav:
In 1776, Paul Revere’s Minutemen (a special group of the Massachusetts militia) were required to have ready 30 bullets and gunpowder. These early American citizen militia laws suggest that, contrary to the idea of a firing-capacity upper limit on the number of rounds a citizen was permitted to keep with one’s arms, there was an obligation that citizens would have at least 20 rounds available for immediate use. Simply put, there were no upper limits; there were floors and the floors were well above 10 rounds. 28:26-29:4
Have you ever heard the argument 'Well, just use other guns!' Benitez was having none of that shit.
Some have said that the burden is minor because there are other choices. E.g., Fyock v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1278 (N.D. Cal. 2014), aff’d sub nom. Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (“Individuals have countless other handgun and magazine options to exercise their Second Amendment rights . . . Accordingly, a prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment.”). But describing as minor, the burden on responsible, law-abiding citizens who may not possess a 15-round magazine for self-defense because there are other arms permitted with 10 or fewer rounds, is like saying that when government closes a Mormon church it is a minor burden because next door there is a Baptist church or a Hindu temple. 39:14-23
He doesn't stop there - and this might be my favorite part:
Others have acknowledged that the burden on a citizen may be severe but consider it a worthwhile tradeoff.
...
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. 40:5-24
Stay awhile and listen while papa Benitez paints us a word picture...
More certain, however, is that the ban is not narrowly tailored or the least restrictive means of achieving these interests. Instead it is a categorical ban on acquisition and possession for all law-abiding, responsible, ordinary citizens. Categorical bans are the opposite of narrowly tailored bans. The § 32310 ban on possession applies to areas in the state where large groups gather and where no one gathers. It applies to young persons with long rap sheets and to old persons with no rap sheets. It applies to draft dodgers and to those who have served our country. It applies to those who would have 1000 large magazines for a conflagration and to those who would have one large magazine for self-defense. It applies to perpetrators as well as it applies to those who have been victims. It applies to magazines holding large, powerful rounds and to magazines holding small, more-impotent rounds. It applies to rifles with bump-stocks and pistols for purses. Section 32310 is not narrowly tailored; it is not tailored at all. It fits like a burlap bag. It is a single-dimensional, prophylactic, blanket thrown across the population of the state. 43:15-44:1
I know what you're thinking: 'But surely, Mr. Balboa, Benitez will spare the police and movie stars from his wrath!' lol, no.
The “fit” of § 32310 is, at best, ungainly and very loose. That is all that it takes to conclude that the statute is unconstitutional. The fit is like that of a father’s long raincoat on a little girl for Halloween.
...
For example, § 32310 makes an exception for retired peace officers, but not for CCW holders or honorably discharged members of the armed forces. There is no evidence that a retired peace officer has better firearms training.55 And in any event, for whatever training they receive, does it matter that they are trained to use a 10-round magazine, a 15-round magazine, a 30-round magazine, and if so, what is the difference? The State does not provide any insight. Another example is the exception for movie props. Why in the interest of public safety does the movie industry need to use a genuine large capacity magazine for a prop? Is it too far-fetched to require the Hollywood creators of Mickey Mouse, Jaws, and Star Wars, to use a non-working magazine in place of a genuine large capacity magazine? 60:24-26,61:1-10
But don't worry - if you're a Vet or a CCW holder, Benitez has your back.
A reasonable fit to protect citizens and law enforcement from gun violence and crime, in a state with numerous military bases and service men and service women, would surely permit the honorably discharged member of the U.S. Armed Forces who has lawfully maintained a magazine holding more than 10 rounds for more than twenty years to continue to keep and use his or her magazine. These citizens are perhaps the best among us. They have volunteered to serve and have served and sacrificed to protect our country. They have been specially trained to expertly use firearms in a conflict. They have proven their good citizenship by years of lawfully keeping firearms as civilians. What possibly better citizen candidates to protect the public against violent gun-toting criminals. Similarly, a reasonable fit would surely make an exception for a Department of Justice-vetted, privately-trained, citizen to whom the local sheriff has granted a permit to carry a concealed weapon, and who owns a weapon with a magazine holding more than 10 rounds. California’s statute does not except such proven, law-abiding, trustworthy, gun-owning individuals. Quite the opposite. Under the statute, all these individuals will be subject to criminal prosecution, should they not dispossess themselves of magazines holding more than 10 rounds. 61:14-62:9
Another of my fav parts:
Ten years of a federal ban on large-capacity magazines did not stop mass shootings nationally. Twenty years of a California ban on large capacity magazines have not stopped mass shootings in California. Section 32310 is a failed policy experiment that has not achieved its goal. But it has daily trenched on the federal Constitutional right of self-defense for millions of its citizens. 62:10-14
This has been a lot of quotes, there is more awesome parts to read but I think you get the idea now.
Some other great sections:
- page 65 'uniquely dangerous?'
- page 67 through page 70, bashing the states 'expert' witnesses and their bullshit lies.
- also page 70, the state misquotes their own source. lol.
- page 72, mass shooters do NOT prefer LCM.
- page 73, points out that police are not safer due to a 10-round cap since nationally the average shots fired to kill or assault an officer is 9.1 and since 2007 has NEVER exceeded 10.
- page 74, 'critical pause' in a mass shooting might save some people some of the time, but it totally fucks people in self-defense shootings all of the time. Benitez cites his sources.
- page 77, 10 rounds is a completly made up number. He also takes the time to bitch slap the AG and the state's lawyers several times for stupidity.
- page 84-86, it's more like a page and a half of reading but if you want a TL;DR he sums it up great in that section.
For all 3 of you that read all of this, let me know what part you loved the most!
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