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Excellent 2nd Amendment Opinion Lasts Only One Week

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/Rich Pedroncelli, File

As the saying goes, “it was great while it lasted.”  On Friday, March 29th U.S. District Court Judge Roger Benitez issued an 86-page Order declaring unconstitutional California’s law criminalizing possession of firearm magazines with a capacity to hold more than 10 rounds.  The senior jurist, who was confirmed to his post in 2004 following nomination by President George W. Bush, went further than do most judges when striking down a state law as contrary to the U.S. Constitution.  He directed that his Order be effective immediately.  In other words, Judge Benitez did not allow California to continue to enforce the unconstitutional law while the state appealed the decision (a process that can be expected to take months).


Unfortunately, less than one week later – on Thursday, April 4th – Benitez relented, and stayed his Order so as to give California’s very liberal Attorney General, former Congressman Xavier Becerra, opportunity to appeal the decision to the federal Ninth Circuit Court of Appeals.  

Notwithstanding the judge’s about-face, his lengthy opinion declaring the magazine ban incompatible with the Second Amendment’s guarantee of the “right to keep and bear arms,” deserves continued scrutiny and praise.  The opinion is strikingly lucid in explaining both the history and the practical necessity of allowing law-abiding citizens to defend themselves, if they so choose, with a firearm capable of firing more than 10 rounds without reloading.

At the outset, Benitez properly underpins his analysis of the magazine ban by asserting that at its core, the Second Amendment is about self-defense; not hunting, not gun collecting, but defense of one’s person, family and home.   Moreover, as he explains further, this foundational principle extends to the essential components of the type of firearms at issue in the California case – rifles and handguns fed by a magazine, without which the firearm is useless.  


From there, Judge Benitez’s opinion dissects the California law, which was enacted as part of the state’s Penal Code not by legislation, but by popular referendum in 2016.   

Benitez deftly analyzes the seminal 2008 U.S. Supreme Court decision in District of Columbia v. Heller, which established clearly that the Second Amendment protects an individual’s right to possess a firearm for self-defense in one’s home.  The Judge determined that the restriction placed on that liberty by the California ban, does not fit under any version of “scrutiny” by which courts find limitations on constitutionally-protected activities to be permissible.

Judge Benitez is at his best when he analyses the evidence Becerra puts forward in support of the state’s arguments that the magazine ban is essential to protect public safety.  

The first major study cited by California in its argument to uphold the ban is a survey conducted by the anti-gun group, “Mayors Against Illegal Guns.”  California’s brief then “bolsters” that biased survey (which the Judge finds full of holes) with another “study” of mass shooting conducted by no less an authority than Mother Jones Magazine.  Suffice to say, Judge Benitez was underwhelmed by the state’s “evidence” that the magazine ban would save (or would have saved) victims’ lives when faced with a crazed gunman.


Of course, when all else fails, gun-control advocates cite “common sense” as an appropriate basis on which to restrict Second Amendment rights.  Becerra tries that, too, but Judge Benitez refuses to take the bait. Mid-way through his Order, the Judge declares that Becerra’s opinion – or anyone else’s for that matter – about what constitutes “common sense,” doesn’t come even close to providing a legitimate basis on which to justify restrictions on rights guaranteed by the Second Amendment.  

Finally, Becerra tries to convince the Court that, because the magazine ban was passed by California voters in a popular referendum, it should be afforded extra “deference” by the judiciary.  One can almost hear Benitez laughing as he rejects that argument as a basis on which to limit Californians’ Second Amendment rights.

There is much more that is noteworthy in the Court’s order. Suffice to say that the language and reasoning throughout this stellar opinion, should provide the basis for numerous other court decisions striking down statutory restrictions on constitutionally-guaranteed liberties; and not just those regarding the Second Amendment. 

Judge Benitez’s opinion should be required reading for legislators and government lawyers at all levels.  


Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003 and currently serves as President and CEO of the Law Enforcement Education Foundation.

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