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Judge Roger Benitez

U.S. District Court Judge Roger Benitez granted a preliminary injuction on Thursday against California’s ban on magazines that hold more than ten rounds.

In the matter of Duncan v. Becerra, the San Diego-based judge said the law banning possession of the magazines would mean “hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property.” He further held that the law “amounts to the government taking people’s private property without compensation.”

Attorney Chuck Michel, who argued in court that the law violated both the Second Amendment and the Constitutional ban on taking property without due process or compensation, called the order “a glorious opinion,” praising the judge for his clear understanding of the Heller gun rights decision and its progeny.

“My clients are pleased the Court affirmed that the Second Amendment is not a second class right, and that law abiding gun owners have a right to choose to have these magazines to help them defend themselves and their families,” Michel said.

The effort to stop the magazine ban was supported by the National Rifle Association and the California Rifle and Pistol Association.

California has banned purchases of magazines with a capacity greater than 10 rounds since 2000, but those who already possessed the magazines could legally keep them.

The magazine ban was scheduled to take effect on July 1st. It had been approved by voters in a referendum last November as Proposition 63. The law required gun owners to dispose of their offending boxes of metal and plastic or face up to a year in jail plus a $100 fine per magazine. Californians could “dispossess” their magazines by transporting them out of state, selling them to a licensed gun dealer, or handing them in to the police.

According to Michel, however, no one was giving up their property. “We were looking at a massive display of civil disobedience. No one was turning these things in.”

Now that the injunction is in place, Michel expects an appeal to the 9th Circuit which, he admits, may be more sympathetic to the gun control law. In the meantime, however, California gun owners can legally keep their property.

This is the second setback that gun controllers in California suffered this week. Earlier this week, the California Office of Administrative Law rejected proposed regulations attempting to eliminate so-called “bullet button” rifles from private ownership. The effort to fight the proposed regulation was spearheaded by Michel’s legal team, once again backed by the NRA and CRPA.


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        • Hannibal is right. The Supreme Court has already turned down to cert petitions that involved actual bans of the AR style rifles, not just the magazines. I would even argue that the minority in Heller has gained one more vote, and the Court has thus accepted (without comment) the massive slide away from the principles enunciated in Heller and McDonald. The anti Circuits have issued bald challenges to the court to take up cases that are slaps in the face to Heller, and the court has done nothing. Peruta asked, is there a right to carry outside the home in some manner?, which in California is a right denied to the manjority of law-abidding citizens. And the Court did nothing. why would a mere magazone ban interst them?

        • From what I’ve read on the subject the SCOTUS decided not to give cert when it became obvious that Kennedy was not going to retire this year. There was significant concern that he was a loose cannon and that if they heard the case they could not be certain he wouldn’t torpedo the decision and they would be stuck with a stari decisis on the Peruta issue that was not what the pro 2A judges wanted.

          And it did result in a very well written dissent by Thomas and Gorsuch.

        • I believe the decision to not grant cert in Peruta was made a while back. It was only announced once Thomas had written his opinion. That could mean that it had nothing to do with Kennedy, or that the other justices knew he wasn’t retiring.

  1. Cool? I guess?….. i dont forsee anything changing. The 9th circus will over rule his ruling. The same thing happened with the 10 day wait period a few years back….. no change.

    • No. This does not mean that. I think that is covered by a different law in California.

  2. This judge deserves a hug!

    The evil 9th Circuit will reverse this, and SCOTUS will decline to hear the case, but this judge deserves a hug.

    • I dunno. This is a real 5th Amendment case in the way that the other gun laws / cases haven’t been. Generally lawmakers have been careful to grandfather things to avoid this situation – to avoid giving our side a 5th Amendment hook.

      But Cali decided to go full retard.

      • This Court just exsanguinated the Takings Clause in Murr v. Wisconsin. The Takings Clause doesn’t exist anymore and will not exist again while Kennedy is on the bench. He wrote for the Court in Murr, siding with the four libtards.

      • Anon in CT,

        I simply came here to say that Big Government will not hamper its objectives and will happily trounce any amendment in the U.S. Constitution. And Ralph provided the specific example which clearly demonstrates that Big Government is no longer concerned about the 5th Amendment.

    • SCOTUS will take it because it is about seizing private property without compensation. California will have to purchase the private property at a fair price.

      • Read the recent opinion in Murr v. Wisconsin, where Murr’s property was taken without compensation.

        The Takings Clause no longer exists.

        • I respectfully demur.

          Yes, Murr is an awful decision, but it’s a long, long way from telling someone that they have to actually surrender their property without compensation. Murr is pretty sui generis and is more of a zoning type “takings” case than a flat-out “give up your property for free” situation like this.

    • 0Refer to Ralph’s comment.

      By the time this gets through the 9th Circuit and is appealed to SCOTUS Kennedy, who was expected/hoped for to retire this year and/or the crazy old woman may well have retired and allowed Trump another SCOUTS pick. If they get another solid Conservative justice to give them a good 5-4 decision they may still hear both Peruta and this case next year.

  3. Congrats! someone found the only non Lib/SJW/snowflake Judge in the whole state of California?

  4. I’d suggest to change the title of “Magazine ban” to “Magazine confiscation”. CA already has a ban. What it didn’t have before was confiscation (And hopefully this injunction will stay until we get rid of that ban too!)

  5. NY did the same thing several years ago. Banned mags over ten rounds and people got no compensation for them. The 9th has precedent from that.

    • Opinion from the 2d circuit is merely persuasive, not a binding precedent for the other circuits…but if the 9th is “persuaded” you can bet they’ll plagiarize the reasoning and citations.

  6. Even if the 9th Circus reverses this, no one will comply and this law strikes me as somewhat unenforceable, but what do I know. Let’s hope the Supreme Court takes this case as this is outright theft.

  7. It’s 6PM, you’re 4 sheets to the wind, and your wife has just brought a pizza home for dinner, BUT, she backed the family car into the tree by the driveway.

    Instant happiness at the announcement of the pizza followed by the pending horror awaiting.

    THIS is how I feel, because as previously stated, the 9th Circus will screw us all VERY soon, guaranteed.

  8. The GOP in Congress should stop playing around with ways to take away people’s health insurance and get busy on splitting the Ninth — and Trump could give California a court that sees the Second as much an individual right as the First.

    • and here I was thinking I’d give my right arm to have my 2008 insurance plan back…of course I can’t afford the surgery to remove the arm due to the higher deductible I have to pay even after I’ve payed the higher premium on my current plan.

    • Which would accomplish what exactly? The split would leave California, Oregon and Hawaii in the same circuit, i.e., with a bench packed with Democrats. Nothing the Ninth does now affects what Arizona or Nevada do, much less Idaho or Montana.

      • I’m sure there is some gerrymandering of judgeships, along with increase in seats, that would make both circuits solidly conservative. I’m also sure the Democrats would filibuster the legislation. I’m fairly sure that the Republicans don’t have the stones to defeat a filibuster (which is easy but time consuming).

  9. Powerful, well-written opinion (click the links and read it — it’s understabdable to the layman). And, unfortunately, very likely to be reversed by CTA9.

    This, however, may be a black swan event, in that the overbroad nature of the voter initiative implicates the Takings Clause, which might be enough to attract Kennedy’s vote and thus a Supreme Court reversal. Or, by the time the case gets to the high court, Kennedy (or maybe Ginsburg or Breyer) will have been replaced, and thus attracting Kennedy will be moot.

    • Kennedy is the arch enemy here. He wrote the opinion in Murr v. Wisconsin, just decided. It’s a disaster.

      • I do not dispute that Murr is awful, and Kennedy really, REALLY, needs to just go away. (When he does, there are a ton of current 5-4 opinions that will be dustbinned in pretty short order. Kelo (and its progeny like Murr) will be one of the first to go.)

        Having said that, I don’t think that even Kennedy is willing to endorse such a ham-handed government confiscation of legally-owned property without compensation.

    • “Powerful, well-written opinion (click the links and read it.” I agree with this 100%. This opinion could be mined for the Gun Quote of the Day for about a decade (based on the rate of positive quotes that make that feature).

      This judge annihilates all the anti-gun arguments with common sense, Bloomberg studies, and California’s “experts.” He cited the plaintiffs’ arguments and evidence maybe once after describing the plaintiffs.

      He made masterful arguments in favor of the 2A and against the law. He even made a pretty good argument that Miller is still reliable law. I don’t believe that last part. The inevitable result of Miller being good law is the overturning of the NFA and Hughes amendment.

  10. Wow, a judge that writes an opinion based on law and not a Mother Jones article.

    …it will be reversed shortly.

  11. Great news. And let’s relax folks. It hasn’t gone to the ninth circus yet….

  12. Yeah, wait and see yet again. The 9th will uphold the ban. If only because the rats hate the Constitution and LEGAL LAW ABIDING gun owners. We serfs, cash cows must bend over and OBEY. Damn I hate commie kalifornia.

  13. Since the 9th Cir. took on Peruta sua sponte e.g. nobody asked for their friggin’ opinion, but they jumped in anyway, I’d expect them to leap onto this decision and savage it like a honey badger on crack.

    However… it is a preliminary injunction and those aren’t normally appealable or reviewable, so it will probably stand for now.

    And, having read the opinion – wow did he go to town on this with every single possible element and aspect of the issue. This Judge needs to replace Justice Kennedy or Ginsburg on the Supreme Court and join Judge Gorsuch. Don’t waste him on the 9th Circuit!

    • Maybe not — he got a “not qualified” rating from the ABA, which takes some doing. His own court staff has called him rude, short-sighted, and worse.

    • Uh, no. Preliminary injunctions ARE immediately reviewable. See Los Supremos recent vacating the various P
      i’s against PDT’s travel bans.

  14. Dear President Trump,

    You have, in U.S. District Court Judge Roger Benitez, an excellent candidate for Supreme court consideration, after Ruth Bader Ginsburg meets with Loretta Lynch on the tarmac of an airport to discuss her future, or should she retire within your tenure as U.S. President. For your consideration, m’lord.

    • However much we may like this particular decision, a judge whose staff thinks he’s not competent and who got a “not qualified” rating from the ABA isn’t suitable for the Supreme Court.

      The man we really needed got killed when Gabby Giffords was attacked; he was a rabid supporter of ALL individual rights, including the two that authoritarians love to hate — the Second and the Fourth. The real tragedy that day is that the wrong person lived.

  15. Follow NYs lead, our. Governor decided that we should register our scary black weapons…..NOBODY DID IT

  16. Blow the liberal’s minds by arguing that California can only be in possession of no more than 10 illegal aliens.

  17. Nothing to see here. The 9th Circuit Court will reverse the decision and SCOTUS will refuse to hear the case. Nothing is going to change and gun bans will continue to reign supreme.

  18. [Judge Benitez] further held that the law “amounts to the government taking people’s private property without compensation infringing on the People’s right to keep and bear arms.”

    There, fixed that.

    • He did rule that the ban was an unconstitutional taking. That part of the ruling took about five pages. It’s a 66 page ruling. I’ll give you one guess as to what the other 61 pages were primarily about.

  19. we seriously need to buy this man a fruit basket or meat basket, hooker basket, whatever the hell he is into we need to get him something because this man gets it.

  20. This judge is a W. Bush appointee, which is no guarantee, but is usually a decent indicator of the quality of the rulings.

    What’s better is that this judge started his education at community college, earning an Associate’s degree, before graduating with a B.A. from good ol’ San Diego State U.

    I like it that his background includes having earned his law degree from a little known law school, not a fancy pants Ivy, and that he worked in private practice for two decades before serving as a local judge. Only aftet all that did he get into the federal judiciary.

  21. Here we see why you can’t give gun control idiots even your pinky, because they will grab your arm and ban your assault fist.
    How long has it been since they determined that only bullet buttons are save for civilians? And now turns out they are too dangerous too?
    They are lying scumbags violating the constitution one slice a time. Who would’ve guessed…

  22. Finally! A judge that has not only read the Constitution but actually understands it. From Judge Benitez’s ORDER GRANTING PRELIMINARY INJUNCTION “Finally, there are no exceptions made for citizens who, should the need ever arise, may be called upon to form a militia for the protection of the state from either foreign or domestic enemies.” For those of us that understand what the militia is (10 U.S.C. 311 or the Militia Act of 1792) this means ALL of us. I hate using this term because it is thrown around on social media so much today, but this truly is brilliant.

    • Ah, The Militia Act of 1792! I would LOVE to see that updated for current day. For those unfamiliar with the act, give it a read. If it were updated, it would basically say every eligible member of the militia is required to maintain a selective-fire AR-15 or equivalent, in good working order, along with enough ammunition to be properly prepared in the event the militia is called upon. Additionally, to properly reflect current standards, all eligible members of the militia would be required to own and maintain a military-grade sidearm.

      Wouldn’t that make some gun grabbers’ heads explode!

  23. For all you guys who can see into the future with certainly about what SCOTUS will do with this, please divulge the next few sets of winning lottery numbers…

  24. Yep, George W Bush appointee.
    The same president who oversaw the sunset of the Clinton AWB and put an income tax cut in place.
    Even so, he is loathed by many on the right.

  25. “Put differently, violent gun use is a constitutionally-protected means for law abiding citizens to protect themselves from criminals. The phrase “gun violence” may not be invoked as a talismanic incantation to justify any exercise of state power.” Pg. 55, Lines 18-21 – Gun Quote of the Day?

    He basically said that gun violence is a constitutionally protected right.

  26. Said it about New York. Saying it about California. Who really cares. If you still live their you’ve made your bed in a rapidly collapsing 3rd world country(sic). It just a matter of time until California turns into Venezuela.

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