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Duncan v. Becerra (CA Mag Ban)


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Holy wow this is a breath of fresh air. On Tuesday, District Judge Benitez granted a preliminary injunction in the suit challenging California's new "you can't even possess a magazine over 10 rounds" law. It's a 66 page opinion and order, chock full of Judge Benitez trashing California.


"In California, the State has enacted, over the span of two decades, an incrementally more burdensome web of restrictions on the rights of law-abiding responsible gun owners to buy, borrow, acquire, modify, use, or possess ammunition magazines able to hold more than 10 rounds. The language used, the internally-referenced provisions, the interplay among them, and the plethora of other gun regulations, have made the State’s magazine laws difficult to understand for all but the most learned experts."


Anyone can tell that this is probably going to go very badly for the State if that is contained within the introduction. But it gets better.


"At the preliminary injunction hearing, the attorney for the Attorney General, although well prepared, was not able to describe all of the various exceptions to the dispossession and criminalization components of § 32310. Who could blame her? The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law."


The Miller test (weapons of war):


"Miller implies that possession by a law-abiding citizen of a weapon that could be part of the ordinary military equipment for a militia member, or that would contribute to the common defense, is protected by the Second Amendment. Concluding that magazines holding 7 more than 10 rounds might be found among today’s ordinary military equipment or that such magazines would contribute to the common defense, requires only a modest finding."


Benitez shoots down the argument that, since magazines with a capacity of over 10 rounds have been banned for purchase is, the new ban on simple possession is just a logical progression.


"To the extent they may be now uncommon within California, it would only be the result of the State long criminalizing the buying, selling, importing, and manufacturing of these magazines. To say the magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning."


Differentiating between Fyock and the instant case (utterly eviscerating the argument presented by the State):


"The difference here, and it is a important difference, is that the district court in Fyock had before it an evidentiary record that was credible, reliable, and on point. . . . That is not the case here. Here, the Attorney General has submitted at this preliminary stage incomplete studies from unreliable sources upon which experts base speculative explanations and predictions. The evidentiary record is a potpourri of news pieces, State-generated documents, conflicting definitions of 'mass shooting,' amorphous harms to be avoided, and a homogenous mass of horrible crimes in jurisdictions near and far for which large capacity magazines were not the cause."


Further discrediting evidence presented by the State:


"So what is the evidence? The Attorney General has provided expert declarations and 3,100 pages of exhibits. Much of the evidence submitted is dated. Approximately 75% of the exhibits the Attorney General has submitted are older than 2013. The documents that are more recent include various surveys of shooting incidents, news articles, position pieces, and firearm descriptions. The amalgamation of exhibits often seems irrelevant."


"In a sixth incident, a pistol was used with four (legal) 10-round magazines. (#31 Oakland (4/2/12)). This, of course, tends to prove the statute would not have the desired effect."


"In other words, only ten of 92 mass shootings occurred in California and § 32310 © & (d) would have had no effect on eight of those ten. The criminalization of possession of magazines holding more than 10 rounds would have had no effect on mass killings by revolver. It would have had no effect on pistols bought legally in California because they are sold with 10-round magazines. It would have had no effect on shootings where magazines holding any more than 10 rounds were not used."


"Persons with violent intentions have used large

capacity magazines, machine guns, hand grenades and pipe bombs, notwithstanding laws criminalizing their possession or use. Trying to legislatively outlaw the commonly possessed weapon de jour is like wearing flip flops on a slippery slope. A downhill slide is not hard to foresee."


Judge Benitez suggests what may be a "reasonable fit" such as exempting CCW holders, then points out the government has, through the CCW permitting process, created a gun registry, giving them a database of law-abiding citizens who carry a pistol with a magazine of over 10 rounds:


"Under the statute, if not enjoined, all of these worthy individuals will become outlaws on July 1, 2017, should they not dispossess themselves of magazines holding 10+ rounds they currently own.(17)"


"(Footnote 17) There is some irony in the fact that these CCW holders have abided by the law. In applying for a concealed weapon permit, they disclose, inter alia, their name, physical address, date and place of birth, criminal history, traffic violation history, and the particular type and caliber of firearm (including serial number) they intend to carry. In so doing, they provided a ready-made list of gun-owning citizens and a list of the types of guns they carry, which guns are likely to use magazines holding more than 10 rounds."


Blowing the "reducing gun violence" argument out of the water, basically stating the statute is overboard and threatens to endanger the freedom of otherwise law-abiding citizens, all while pointing out that, sometimes, a good guy with a gun is the only thing stopping a bad guy with a gun:


"The Attorney General articulates four important objectives to justify this new statutory bludgeon. They all swing at reducing 'gun violence.'. . . And [the bludgeon] throws the law-abiding, self-defending citizen who continues to possess a magazine able to hold more than 10 rounds into the same jail cell as the criminal.


"Defensive gun violence may be the only way a law-abiding citizen can avoid becoming a victim."


Addressing the Takings Clause in context of seizure of the banned magazines, pursuant to "police powers" or the State:


"Plaintiffs remonstrate that defending the law’s forced, uncompensated, physical dispossession of magazines holding more than 10 rounds as an exercise of its 'police power' is not persuasive. Supreme Court precedent casts doubt on the State’s theory that an exercise of the police power cannot constitute physical takings."


Ahhhh I'm done. This is an extremely well-reasoned, thorough, balanced opinion. Kudos to Judge Benitez for not allowing emotions to own his analysis. http://cloud.tapatalk.com/s/595658e44ad93/Duncan-v.-Becerra_Order-Granting-Preliminary-Injunction.pdf


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I believe this speaks for itself.


"If this injunction does not issue, hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess oneâs self of lawfully acquired property. That is a choice they should not have to make. Not on this record."


He seems willing to entertain that the ban could be constitutional, but not based on what has been presented to the court. Discredited evidence, stale garbage. All kinds of stuff. This opinion is truly impartial and extremely thorough. He even cited Moore when calling out California for demanding the court apply rational basis when a heightened level of scrutiny is required.


"Every injury or death caused by the misuse of a firearm is a tragedy. That the mentally ill and violent criminals choose to misuse firearms is well known. This latest incremental incursion into solving the 'gun violence' problem is a reflexively simple solution. But as H.L. Mencken wrote, 'There is always a well-known solution to every

human problem â neat, plausible, and wrong.'"


Followed by...


"The regulation is neither presumptively legal nor longstanding. The statute hits close to the core of the Second Amendment and is more than a slight burden. When the simple test of Heller is applied, a test that persons of common intelligence can understand, the statute is adjudged an unconstitutional abridgment. Even under the more forgiving test of intermediate scrutiny, the statute is not likely to be a reasonable fit."


It fails both rational basis and intermediate scrutiny. And the quip about persons of common intelligence is great since CA9 is gonna hear this appeal. Persons of common intelligence...Circuit Judges, show of hands?


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Great write up OP, thanks for that.


But its California so unless the Supreme Court of the United States takes this case its probably dead in the water. Once it goes before the 9th circuit court of anti gunners this ruling will be overturned. Lets hope the Supreme Court finally wakes up and takes on a case having to do with second amendment rights...and then rules correctly against tyranny..

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Now I understand the judge and his ideology. He's a Bush II appointee but most importantly, he was born and raised in Havana, Cuba. He is uniquely qualified to judge a case such as this because he grew up under a totalitarian regime much like Judge Kozinski. Why is it that one must experience the iron fist of a dictator to fully appreciate the fact that we have a Bill of Rights and each and every right is equally respected. It's truly a shame that a lot of these judges simply lack the perspective to judge a Second Amendment related case. I guarantee that these liberal judges who toss the 2A aside like trash, would not do so if they had not enjoyed the constitutional protections that are taken for granted, do not exist anywhere else on the face of the earth.


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  • 10 months later...
While listening to the oral argument in Virginia Duncan, et al v. Xavier Becerra, I could not believe that the NRA lawyer Chuck Michel had a truly competent attorney employed at his law firm, Erin E. Murphy.

And so I did some checking and, sure enough, she doesn't work for his law firm, she is a partner in the D.C., law firm of Kirkland and Ellis.

Although one cannot always judge which way a case will go based on oral argument, and I've seen enough of them to know that they more often than not go in the opposite direction, if I were a betting man then I would bet that the preliminary injunction is upheld if for no other reason than the preliminary injunction maintains the status quo which has existed since the year 2000.


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  • 2 months later...


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