Josh Blackman

In 2000, California banned the sale of firearm magazines that
can hold more than ten rounds. Residents who already possessed such
magazines were “grandfathered” in. Or at least that was the

Recently, Californians approved Proposition 63, which would have required all
grandfathered owners to surrender those magazines by July 1, 2017,
or face up to a year in prison. Civil-rights groups challenged the
confiscation in federal courts. With less than a day to spare,
Judge Roger T. Benitez of the Southern District of California
blocked the measure from going into effect. In his thoughtful opinion, he meticulously
deconstructs every strawman erected by gun-control advocates, who
can show no evidence that limiting magazine sizes will improve
public safety. No doubt this decision will be appealed, but the
higher courts should take note: Judge Benitez provided a clinic on
how to scrutinize laws that restrict Second Amendments rights.

In District of Columbia v. Heller, the Supreme Court
recognized that the Second Amendment protects an individual right
to keep and bear arms. That right is not limited to guns; it
extends also to the ammunition and magazines that make the gun
operable. California’s law directly infringes on that right, by
prohibiting law-abiding firearm owners from using their magazine of
choice for self-defense. Following Heller, lower courts
have held that the government can ban certain types of arms only if
it demonstrates that doing so will reasonably protect public
safety. Unfortunately, in the past, most judges simply rubber-stamp
whatever evidence the state provides to justify gun-control
measures, whether or not it fits with public safety.

If the Ninth Circuit
reverses the decision, the Supreme Court could be on call very

Not Judge Benitez. He refused to defer to the attorney general’s
“incomplete studies from unreliable sources” about a “homogenous
mass of horrible crimes in jurisdictions near and far for which
large capacity magazines were not the cause.” With the precision of
a scalpel, the court systemically sliced apart the government’s
unpersuasive efforts to justify the ban. For example, the attorney
general had relied on a survey of shootings published by Mother
, a progressive magazine. Judge Benitez dismissed the
publication, which “has rarely been mentioned by any court as
reliable evidence.” Moreover, he added, “it is fair to say that the
magazine survey lacks some of the earmarks of a scientifically
designed and unbiased collection of data.”

What about the government’s citation of a survey issued by the
group Mayors Against Illegal Guns? Judge Benitez noted that this
group, founded by former New York City mayor Michael Bloomberg, “is
apparently not a pro-gun rights organization.” That is an
understatement. More significantly, the court concluded, the survey
of 92 mass shootings — 82 of which were outside California
— “does not demonstrate that the ban on possession of
magazines holding any more than 10 rounds” would reasonably help
the state to achieve its public-safety goals. Of the ten shootings
in California, eight were not known to involve high-capacity
magazines, and two involved magazines that were probably illegal.
For example, the Santa Monica shooter used high-capacity magazines
that were likely shipped from outside California. “Criminalizing
possession of magazines holding any more than 10 rounds,” the court
reasoned, “likely would not have provided additional protection
from gun violence for citizens or police officers or prevented the
crime.” More important, even though millions of high-capacity
magazine are owned nationwide, the mayors’ survey could identify
only six mass-shooting incidents between 2009 and
2013 that employed them.

The government’s expert witnesses fared no better. The court
dismissed their evidence as little more than “anecdotal accounts,
collected by biased entities, on which educated surmises and
tautological observations are framed.” One professor said the ban
on high-capacity magazines “seems prudent,” based only on what
Judge Benitez labelled “a complete absence of reliable studies done
on formal data sets.” Another professor justified the ban on large
magazines by citing the need to force “mass shooters to pause and
reload ammunition.” That argument, supported by zero data, is
belied by common experience. The court noted that during mass
shootings in Alexandria, Va., and Fort Hood, Texas, mass shooters
were able to reload several times without difficulty; they were
stopped only when confronted by another shooter. In any event, why
stop at ten rounds? For example, New York sought to limit magazine
sizes to seven rounds, because the average defensive gun use
involves on average two rounds. Judge Benitez asked, somewhat
rhetorically, why not then limit magazines to three rounds?

In other contexts, courts are perfectly comfortable
second-guessing the government’s need to promote public safety
— even concerning the rights of aliens outside the United
States and in delicate matters of foreign affairs. For example, in
recent litigation over the travel ban, federal
courts have dismissed the executive branch’s goal of protecting
national security as a fraud. But with the Second Amendment, courts
have regrettably treated the right to keep and bear arms as a
second-class right and consistently accepted
the government’s interests as articles of blind faith.

Not so in Judge Benitez’s courtroom. He explained that “the
phrase ‘gun violence’ may not be invoked as a talismanic
incantation to justify any exercise of state power.” In any case,
the measures in question would not deter crime. “Criminals intent
on violence would then equip themselves with multiple weapons,”
Benitez observed. Or, as Justice Stephen Breyer noted last year in
an opinion striking down Texas’s abortion laws, “determined
wrongdoers, already ignoring existing statutes and safety measures,
are unlikely to be convinced to adopt safe practices by a new
overlay of regulations.” (Of course, the right to keep and bear
arms is framed in the Constitution; a right to privacy is not.)
Criminals bent on breaking the law will break the law. Confiscation
measures like Proposition 63 punish law-abiding citizens, limit
their ability to defend themselves, and have at best a negligible
impact on public safety.

On the same day that Judge Benitez issued his important
decision, another federal judge in Sacramento reached the opposite
result, allowing the confiscation measure to go into effect. The
California attorney general will no doubt seek an emergency stay
from the Ninth Circuit Court of Appeals to nullify Judge Benitez’s
decision. Second Amendment rights, alas, have not fared well in
that court. Because of the urgency of this case, sooner or later an
emergency petition may wind up on the desk of Justice Anthony
Kennedy, who supervises appeals from California. Justice Kennedy
joined the Heller decision in 2008 and two years later
joined the follow-up case of McDonald v. City of Chicago.
But since 2010, the Court has not heard arguments in any Second
Amendment case.

Regrettably, last week the Supreme Court turned away another case from
that concerned the right to carry outside the home.
Only Justice Clarence Thomas and his newest colleague, Justice Neil
Gorsuch, disagreed: “The Court’s decision to deny certiorari in
this case reflects a distressing trend: the treatment of the Second
Amendment as a disfavored right,” Thomas wrote. Over the last seven
years, the justices have hesitated to expand gun rights beyond
allowing law-abiding citizens to keep a firearm in the home.
Proposition 63 is radically different from previous appeals: It
attempts to take away what law-abiding citizens already have.
Perhaps now that the fear of confiscation has come to fruition, five
justices will intervene and ensure that Americans are not punished
for exercising their constitutional rights.

is a constitutional-law professor at the South Texas
College of Law in Houston, an adjunct scholar at the Cato
Institute, and the author of Unraveled: Obamacare, Religious Liberty, and
Executive Power

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