Fed Judge blocks CA magazine ban

[robertrwalsh]

Acting today Federal Judge Roger Benitez out of San Diego blocked implementation of the CA magazine confiscation and ban, asserting that it is an unlawful taking of private property without compensation.

[427mach1]

Reminds me of the Australian "gun buy-back" program. As I recall, the lawmakers thought they would just confiscate the guns from the citizens until it was pointed out that their constitution forbids the government from taking private property without compensation. At that point it became a "buy-back" program.

[LoboGunLeather]

Three cheers for Mr. Benitez! Clear thinking in California, who woulda thunk it?

[Cortelli]

It's a win!

But it's still just an order issued with respect to a request for a preliminary injunction.

And the takings aspect of it seems to me less important - more important was the 2nd amendment analysis in context of the request for a PI . I posted some of the strongly worded quotes (to my eye) from the order over on Calguns.net (I live in California, alas).

Keep in mind this was a federal judge interpreting California law - and in an order, not a final judgment.

I'll repost here if that doesn't run afoul of forum rules:

On this evidence, § 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 10 rounds.

Statutes disarming law-abiding responsible citizen gun owners reflect an opinion on gun policy. Courts are not free to impose their own policy choices on sovereign states. But as Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of debate. Disarming California’s law-abiding citizenry is not a constitutionally-permissible policy choice.

Sections 2.11 and 2.12 of Proposition 63, in the section titled “Findings and Declarations” addresses “military-style large-capacity ammunition magazines.” It declares, “No one except trained law enforcement should be able to possess these dangerous magazines.” (Emphasis added.) The rationale is anathema to the United States Constitution’s Bill of Rights guarantee of a right to keep and bear arms. It is a right naturally possessed by regular, law-abiding responsible citizens, whom are neither reliant upon, nor subservient to, a privileged, powerful, professional police state.

Put differently, violent gun use is a constitutionally-protected means for lawabiding 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.

Again, still a win. But not a final decision on the merits, nor any sort of release from California's laws on ammunition magazines, other than the enforcement of the prohibition of *possessing* mags holding greater than 10 rounds that was due to be enforceable on July 1. Still a win .

[Targets Guy]

That judge is history.

[PPS1980]

Originally Posted by Targets Guy

That judge is history.

Due for a promotion more like. Under current administration's priorities they're looking for federal judges that respect the Constitution.

[gman51]

About time there was a judge that actually went by the law instead of siding with law breakers wanting to make law.

[eb07]

Sanity still lives!! I hope Cali gets owned.

[GaryS]

This is encouraging, even though there is still a long way to go in the case.

[BC38]

Originally Posted by Targets Guy

That judge is history.

Maybe not if California's law-abiding gun owners get out in force and organize a serious grass-roots campaign in support of him.
The key is to not be defeatist and give up on CA as a 'lost cause'. That is the one thing the anti-2A crowd NEVER does. No matter how many times they get defeated they are very organized and just keep coming right back. This approach has allowed them to keep making small gains that add up over time. We have to do the same.

[ovrbrdonammo]

As long as they keep G.Newsom out of gun owners rights. He should concentrate on his friends, err wives.

[bushmaster1313]

Originally Posted by Targets Guy

That judge is history.

1. Federal Judges have lifetime appointments under Article III of the Constitution.

2. I am pleased but very surprised by the result. A ban on magazines above 10 rounds is quite intrusive, but nowhere near as restrictive as the total bans on handguns that were held unconstitutional by the Supreme Court. in Heller and McDonald.

3. If someone was asking my advice, I would say to expect that the Ninth Circuit will hold that California's ban on magazines above 10 rounds is valid under the United States Constitution and that the Supreme Court will not take the case.

[GaryS]

Federal judges are appointed for life. They can only be removed by impeachment by the US House of Representatives and conviction by the US Senate. Conviction requires a 2/3 vote in the Senate. Neither of which is likely.

Since the ratification of the Constitution, only 8 federal judges have been convicted and removed from office.

Originally Posted by Targets Guy

That judge is history.

[Cortelli]

Originally Posted by bushmaster1313

3. If someone was asking my advice, I would say to expect that the Ninth Circuit will hold that California's ban on magazines above 10 rounds is valid under the United States Constitution and that the Supreme Court will not take the case.

I'm not sure I would take a bet on the opposite side of this.

However, it is years away from any SCOTUS appeal. This was an order on a request for a preliminary injunction against a law that was passed in 2016 (maybe 2015?) and then largely reinforced / replaced by a very similar "Proposition" on CAL's ballot in Nov 2016 - propositions are proposed laws that CAL voters vote on in elections and that become law (or not).

Before the law passed by CAL legislature, and essentially reaffirmed via proposition 63 in 2016, CAL residents were prohibited from importing, selling, transferring, buying, etc. "large capacity magazines" which under CAL law meant any magazine capable of holding more than 10 rounds. Again, *before* the new law, CAL residents could *possess* 11+ round mags if they were acquired lawfully before a certain date. The new law and subsequent proposition purported to make it unlawful to *possess* an 11+ round mag after July 1, 2017 - even if acquired lawfully and possessed prior to any restriction on such magazines.

There are a lot of gun owners in CAL who were worried about the July 1 date and its implications. There are a lot more CAL gun owners / possessors who had no idea that their possession of magazines acquired lawfully many years ago might be considered suddenly illegal on July 1.

The preliminary injunction at the very least means "no action needed" for those Californians who lawfully and peacefully have been in possession of magazines holding more than 10 rounds. Without the PI, many Californians might have potentially been guilty of an infraction or misdemeanor (albeit one involving firearms, which under current interpretations could have permanent, negative effects on one's 2A rights) if found in possession of an otherwise lawfully acquired magazine.

[bushmaster1313]

However, it is years away from any SCOTUS appeal. This was an order on a request for a preliminary injunction

Could go quick

IIRC, injunctions, unlike interlocutory orders, are immediately appealable to the Circuit, and I suspect the Ninth Circuit would act quick
(an interlocutory order is an order that is not an injunction and which is entered before the case at the district court is over)

[DefenderBob]

Originally Posted by Targets Guy

That judge is history.

Remember, Mike, this judge is a federal judge. That means that he is not subject to removal by state action or answerable to activists.

[TTSH]

Lots of negativity here over this... I'm surprised.

The fight to reverse this latest anti-2A outrage from CA had to start somewhere and I'm very happy it did. This slap-down, albeit temporary, appears to have been done rather diligently and eloquently too, pointing out many truths that CA gun-grabbers and judges had to hear. Put that together with likely widespread failure to comply and maybe we have a chance that SCOTUS will eventually take this up. I refuse to let pessimism because "CA" get me down.

[GaryS]

There is no time limit on when the Ninth would have to decide the case. I think they sat on Peruta for close to three years before overturning the 3 Judge appellate decision. They could well sit on this too.

OTOH, the longer this sits in the lower courts, the more chance of a retirement and replacement of a Justice.

Originally Posted by bushmaster1313

Could go quick

IIRC, injunctions, unlike interlocutory orders, are immediately appealable to the Circuit, and I suspect the Ninth Circuit would act quick
(an interlocutory order is an order that is not an injunction and which is entered before the case at the district court is over)

[ladder13]

Originally Posted by TTSH

Lots of negativity here over this... I'm surprised.

............

I'm not at all surprised. Negativity always finds a way into these positive threads.

[SMSgt]

Considering recent federal judge trends in the 9th district, this judge has big brass ones.

[CAJUNLAWYER]

Why don't y'all read the actual opinion? http://www.courthousenews.com/wp-con...alif.Guns_.pdf

A few things about Federal Judges:
They are appointed for LIFE and unless they do something illegal they cannot be removed from office. This allows them to do the correct thing (which is why it is so important to appoint Judges that are not activists and understand that the third branch id the government does NOT make laws). Therefore this guy did NOT go out on a limb and jeopardize his job-nor does he have big balls, only that apparently in California there are some sane members of the judiciary.
Next; preliminary injunctions are NOT granted unless the likelihood of prevailing is good. There was a contrary decision reached in Northern California so I suspect tat the 9th will take this up quickly and then Kennedy who oversees the 9th will be the point man on the Supreme Court to which review will be sought. He came down on our side in Heller so This may very well be THE case. I really liked what this judge said in the opinion and everyone ought to read it.

[GaryS]

Tea leave reading after cert was denied in Peruta, I don't see Kennedy as solidly pro 2A. I think he is 2A up to a point, but I don't know what that point is. Which is why I think Roberts and Alito voted against cert for Peruta. Thomas is solidly pro 2A and is less concerned about vote counting. Which is why he wrote a dissenting opinion. Gorsuch is Pro 2A, and I think he wanted to demonstrate that which is why he joined Thomas.

Kennedy has not hired clerks for the 2018 term, which some people take as a sign that he is going to retire.

I think we are a conservative appointee away from THE case on 2A matters.

Again, just some tea leave reading on my part.

Originally Posted by CAJUNLAWYER

Why don't y'all read the actual opinion? http://www.courthousenews.com/wp-con...alif.Guns_.pdf

A few things about Federal Judges:
They are appointed for LIFE and unless they do something illegal they cannot be removed from office. This allows them to do the correct thing (which is why it is so important to appoint Judges that are not activists and understand that the third branch id the government does NOT make laws). Therefore this guy did NOT go out on a limb and jeopardize his job-nor does he have big balls, only that apparently in California there are some sane members of the judiciary.
Next; preliminary injunctions are NOT granted unless the likelihood of prevailing is good. There was a contrary decision reached in Northern California so I suspect tat the 9th will take this up quickly and then Kennedy who oversees the 9th will be the point man on the Supreme Court to which review will be sought. He came down on our side in Heller so This may very well be THE case. I really liked what this judge said in the opinion and everyone ought to read it.

[KF-NYC]

This case only applies to California where their gun owners had legally previously owned magazines that held an excess of ten rounds. Currently there are several states that have enacted laws restricting legal handgun owners to possess only those magazines containing no more than ten rounds.