A Case Worth Watching

A federal court case out of California which might ultimately wind up before the U.S. Supreme Court offers proof beyond a reasonable doubt elections matter, especially when it comes to the presidency and U.S. Senate — so always vote.

The case in question is Duncan v. Becerra, with a remarkable history, considering its origin. California, and more importantly the Ninth U.S. Circuit Court of Appeals, has not been friendly to gun owners or the Second Amendment. However, this one could provide some balance to the books.

Slap Down

Liberal judges and Democrat politicians may try to skirt Supreme Court rulings in the Heller and McDonald cases, but a slap down of a cornerstone, trophy California statute — the ban on high-cap magazines — would be devastating and impossible to ignore.

More than two years ago, federal District Court Judge Roger Benitez handed down a stunning opinion that California’s ban on so-called “high capacity magazines” is unconstitutional. It was a staggering rebuke of Golden State gun control.
The state immediately appealed to the Ninth Circuit, where just over 16 months later a three-judge panel with Judge Kenneth Lee writing for the majority, issued an opinion upholding Benitez’ 2019 decision. Siding with Judge Lee was Judge Consuelo M. Callahan, while Judge Barbara M. Lynn from the U.S. District Court for the Northern District of Texas, dissented.

Judges Benitez and Callahan are George W. Bush appointees to the federal court. Judge Lee is a Donald Trump appointee. Judge Lynn was appointed by Bill Clinton. All four jurists are certainly good people whose qualifications to sit on the federal bench were good enough for the U.S. Senate. They just have obviously different perspectives on firearms law.
Following the Lee decision, California petitioned for an en banc rehearing, a hearing before a full court panel of judges. In the past, this strategy has typically resulted in a reversal on gun issues. However, Trump managed to fill some vacancies on the Ninth Circuit. The intent was to bring some balance to the court and this may be Trump’s lasting legacy. In addition to Judge Lee, President Trump appointed nine judges to the Ninth Circuit.

Surprising Arguments

Especially interesting in then-California Attorney General Xavier Becerra’s explanation for his appeal, was this paragraph in his statement to the press:

“LCMs have been used in many horrific mass shootings around the country, including the shooting at the Borderline Bar and Grill in Thousand Oaks in 2018, and the shooting at the Inland Regional Center in San Bernardino in 2015.”

A cursory check of the facts about those shootings revealed the following. Killer Ian David Long, who opened fire at the Borderline Bar and Grill in Thousand Oaks on Nov. 7, 2018, used a legally purchased .45-caliber GLOCK 21 pistol and seven high-cap magazines banned under existing California statute, as noted by Wikipedia. For Becerra to argue the magazine ban is an effective tool against mass shootings and use this case, is dumbfounding because the incident proves the magazine ban didn’t work!

Jump back to July 28, 2019 and the 41st annual Gilroy Garlic Festival. Enter Santino William Legan, armed with a semi-auto rifle fitted with a 75-round drum magazine. Instead of an argument supporting California’s magazine law, this case is more damning evidence it hasn’t worked to prevent tragedies.

Common Sense: Benitez

This case has allowed the judges to display some of the “common sense” so often cited by the gun prohibition lobby as necessary to the regulation of firearms; a proposition on shaky ground from the outset because the keeping and bearing of arms is a constitutionally enumerated and protected fundamental right, not a government-regulated privilege.

“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,” Judge Benitez observed, “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.’”

Common Sense: Lee

Judge Lee is no less articulate when it comes to dealing with California’s ban on “large-capacity magazines” (LCMs). In his 67-page majority opinion, the 45-year-old jurist made it clear early on, “Firearm magazines are ‘arms’ under the Second Amendment. Magazines enjoy Second Amendment protection for a simple reason: Without a magazine, many weapons would be useless, including ‘quintessential’ self-defense weapons like the handgun …”

Near the conclusion of his opinion, Judge Lee reminds us, “We understand the purpose in passing this law. But even the laudable goal of reducing gun violence must comply with the Constitution. California’s near-categorical ban of LCMs infringes on the fundamental right to self-defense. It criminalizes the possession of half of all magazines in America today. It makes unlawful magazines that are commonly used in handguns by law-abiding citizens for self-defense. And it substantially burdens the core right of self-defense guaranteed to the people under the Second Amendment. It cannot stand.”

Why Watch?

Duncan v. Becerra could provide the U.S. Supreme Court an opportunity to hammer down on an issue remaining elusive — to more clearly define what the Second Amendment protects and what it may not.

If this case does advance to the high court, which also has three justices appointed by Trump, it could be used to upend decades of increasingly extreme gun control, not just in California but across the country. This is why elections matter.
And this brings us around to November 2021 and the Commonwealth of Virginia. This fall, Virginia voters have an opportunity to take back their legislature in Richmond and the governor’s office. Two years ago, an abysmally poor voter turnout allowed anti-gun Democrats to take power and they used it.

Gun rights activists across the country can support efforts to restore a pro-Second Amendment state government in the Old Dominion. It may not be your state, but it is still part of the United States and the fight to restore the Second Amendment must begin somewhere — Virginia offers gun owners the opportunity.

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