What we wish for, what we work for
Judge Roger Benitez, senior judge for the United States District Court for the Southern District of California, ruled on Friday (22 September 2023) that the state’s law banning magazines that can hold more than ten rounds is a violation of the federal constitution, explaining that such a ban has no origin in America’s history of firearms regulations in existence at the time the Second Amendment was adopted. This decision follows the lead of the U.S. Supreme Court’s 2022 Bruen decision that, in addition to tossing out New York’s carry licensing regime, set the standard used here by Benitez as the guiding doctrine for evaluating all gun control measures going forward.
His finding was predictable, since he has come to essentially the same conclusion in 2019, the previous ruling having been tossed about in the appeals process while the courts awaited what the Supreme Court would say in Bruen. The responses by California’s attorney general and governor to yesterday’s decision have also been no surprise. Rob Bonta said that the “district court got this wrong” and promises to “move quickly to correct this incredibly dangerous mistake.” Gavin Newsom labeled Benitez “an extremist, right-wing zealot with no regard to human life,” suggesting that the judge is owned by the NRA, and called once again for a constitutional amendment that he believes would “protect our kids and end the gun violence epidemic in America.”
Bonta’s move to overturn Benitez’s ruling is presumably going to be an appeal to a higher court, but I do have to wonder just how far up the organizational chart he will be willing to go, with, as indicated above, a Supreme Court that has made an ultimate outcome in little doubt, so long as the current composition of justices remains the same. Given how long the appeals process can drag on, particularly if the Ninth Circuit insists on delaying, Bonta may hope that Justices Thomas and Alito will no longer be serving by the time his case arrives. Alternatively, he might take the path that Illinois adopted in the Seventh Circuit Court of Appeals case, Moore v. Madigan, whose ruling anticipated the Bruen decision by finding the state’s policy of denying legal carry of concealed firearms to nearly all residents to be unconstitutional. The state at last chose to accept the decision and adopt a shall-issue system for licensing, a move interpreted by many in the gun rights community as an effort to prevent a similar ruling from the Supreme Court, blocking nationwide clarity for a decade until Bruen.
The common excuse for magazine capacity restrictions is that such laws will limit the carnage caused by mass shooters. Such interest-balancing considerations are for the moment out of bounds, but even were the courts in the future to permit gun control as a measure to increase safety or public health or the purity of our bodily fluids, the data do not support the belief that ten rounds before reloading is a useful policy. In an examination of mass shootings published recently in the Journal of the American Medical Association Network Open, the authors found that Washington, D.C. had the highest rate of such incidents (10.43 per million residents) in the period between 2014 and 2022, with Louisiana (4.28) and Illinois (3.61) coming in second and third. California (1.04) ranked in the middle of states over the same time, having a total only slightly better than Texas’s 1.05. If the strict gun laws of the nation’s capital and one of the states with the most onerous laws have the most and the third most mass shootings, California would be ill-advised to claim that its layers of laws put it in a dead heat with Texas. That is especially the case when in 2022, California took third place in most mass shootings with forty-nine over the twelve months, this time behind Texas with fifty and Illinois with fifty-seven, according to data from the Gun Violence Archive and quoted in Wisevoter.
But gun control has always been about emotion and establishment power, not about data. I expect to see many more of its advocates demanding, as Gavin Newsom has done, for an amendment to alter if not outright repeal the Second Amendment with rulings such as the one from Benitez. The Bruen decision leaves little opportunity for restrictions to survive, and the desperation for control can only grow in proportion.
What we who support gun rights must not do is act like supporters of abortion rights and lounge on court rulings. Roe and Casey felt like the text of the Bill of Rights for decades to many who support a pregnant person’s right to decide whether or not to continue the pregnancy, and that collapsed under Dobbs. The same may very well happen and not too long from now, considering the ages of the aforementioned Thomas and Alito.
Decisions from the high court are a fine thing, but such rulings do not come down from the sky, etched in stone. They have to be backed by legislation that supports and employs the rulings, and they must be defended by ordinary Americans who will win over voters to our cause.
We can keep gun rights if we work for them. But their exercise can be quickly lost if we leave their defense solely to the courts.