A federal judge in San Diego on Thursday temporarily blocked California’s ban on ammunition magazines that hold more than ten cartridges, issuing a preliminary injunction against a law that would have taken effect Saturday, while he examines details of a lawsuit filed by the California Rifle & Pistol Association, the Sacramento Bee reported.
This could create an interesting conflict because only a few hours earlier, a different federal judge in Sacramento had decided against plaintiffs in a similar lawsuit challenging the same law, as noted by the San Francisco Chronicle.
The preliminary injunction was issued by U.S. District Judge Roger Benitez, a George W. Bush appointee.
Coming down on the other side of the issue was U.S. District Judge William Shubb, a George H.W. Bush appointee.
Proposition 63, which bans the possession of magazines that hold more than 10 rounds and requires background checks for ammunition purchases, was passed by 63 percent of the voters in November. But the judge’s ruling essentially indicates that civil rights cannot be subject to a popular vote.
Judge Benitez wrote in his decision, “The State of California’s desire to criminalize simple possession of a firearm magazine able to hold more than 10 rounds is precisely the type of policy choice that the Constitution takes off the table.”
He said the Constitution “is a shield from the tyranny of the majority,” and that the rights of gun owners “are not eliminated simply because they possess `unpopular’ magazines holding more than 10 rounds.”
Judge Benitez ruled that the ban is essentially a government “taking” and also amounted to denying Golden State gun owners of their Second Amendment rights, according to Fox News. In his ruling, quoted by Fox, Judge Benitez observed, “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.”
California Attorney General Xavier Becerra argued that Proposition 63, passed by voters last fall, was aimed at assuring public safety.
Anti-gunners, including California Lt. Gov. Gavin Newsom who championed the ban, can appeal to the Ninth Circuit Court of Appeals. But Judge Benitez’ ruling contained this powerful observation, quoted by the San Diego Union Tribune: “Ultimately, this case asks two questions. ‘Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation? Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?’ Because a final decision on the merits is likely to answer both questions ‘yes,’ but a final decision will take too long to offer relief, and because the statute will soon visit irrevocable harm on Plaintiffs and all those similarly situated, a state-wide preliminary injunction is necessary and justified to maintain the status quo.”
