Gems From Judge Benitez's Decision

The decision has now been stayed by the 9th Circuit (little surprise), but that doesn't mean that Judge Benitez's words of wisdom don't hold true. Here is a selection. All quotes below are his.

Full decision

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The experiment has been tried. The casualties have been counted. California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured. 

First, criminals, tyrants, and terrorists don’t do background checks.

A ballot initiative known as Proposition 63 (the “Safety for All Act of 2016”) (a misnomer)...

The Second Amendment is not a 'loophole' that needs to be closed.

To emphasize the point, all standard California driver’s licenses now look exactly the same, whether issued to a citizen resident or to an unlawfully present alien. Here is the rub. Without additional proof of citizenship, everyone who wants to buy ammunition with a standard California DL is rejected at the main gate because a person who presents a standard California DL at the main gate may be either a U.S. Citizen or an unlawfully-present alien. The first person has a federal constitutional right to possess a firearm and buy ammunition. The other person commits a federal crime by possessing either a firearm or ammunition.

"Warning: the following description of background check obstacles will be dreadfully boring and convoluted."

While there are no numerical limits on the quantity of ammunition one may buy today, Carnac the Magnificent might easily predict that in the not-to-distant future, this will be deemed a “loophole” that the State will endeavor to close. 

In their quest to insure freedom and liberty for our country’s citizens, our Founders enshrined the Bill of Rights in our Constitution. One intended effect of the Bill of Rights is to protect the minority from abuse by the majority by keeping some rights beyond the reach of majoritarian rule.

With its newest over-arching and sweeping background check system, the State completely chokes off many law-abiding responsible gun owners while burdening all citizens who want to buy ammunition. Another pesky loophole closed. 

Is an untried, untested, sweeping ammunition background check system, that returns an unusually high percentage of rejections, a constitutionally-permissible burden to impose on the Second Amendment rights of law-abiding responsible citizens who desire to defend themselves with whatever common ammunition suits their situation?

A government may not choose to implement a first-of-its-kind background check system that impedes, defeats, and completely bars the acquisition of ammunition by numerous law-abiding, responsible citizens. That choice infringes the Second Amendment.

The Court notes that this deferential treatment of government restrictions of Second Amendment rights is not to be found anywhere in the Bill of Rights or in the text of the Second Amendment. It begs the question, is there anything that a government cannot claim to be a substantial state interest? And if that is the case hen can the state, through its legislative powers, run roughshod over constitutionally protected rights by claiming they are “common sense laws” that promote the government interest? After all, there is hardly any governmental intrusion that cannot be rationalized as important (for example, a Japanese internment camp). 

And the cure, making it difficult for law-abiding citizens to acquire ammunition, is far worse than the disease. 

And of course, criminals don’t do background checks.

The experiment does not differentiate between a would-be purchaser who is an honorably discharged member of our military, a concealed carry permit holder, a hunter, or a former law enforcement officer, versus an edgy-looking, furtiveglancing, impatient and angry customer.

Also, while openly carrying an unloaded handgun or long gun is prohibited in a public place or on a public street within an incorporated city and in a prohibited area of an unincorporated area of a county, the carrying is not prohibited in non-prohibited areas of an unincorporated county area, such places generally being rural. No doubt, in the not too distant future, this too will be deemed a “loophole” that must be closed.

A ballot proposition is precisely what the Bill of Rights was intended to protect us from – a majority trampling upon important individual rights.

When a legislature’s findings may be given deference it is because a legislative body may be better equipped than the judiciary to amass and evaluate the potentially vast amounts of data bearing upon complex issues. Yet, the referendum process does not invoke the same type of searching fact-finding by a deliberative body.

If Congress is correct, ammunition recordkeeping and anti-importation laws do not work. It is a quixotic notion that criminals (and those bent on committing crimes) will abide by the law, and pay for a background check where their identifiers are recorded and information about their firearms and ammunition is transmitted to law enforcement.  Human experience and evidence teaches otherwise. As Los Angeles jail inmates reportedly said, underground market guns usually come with ammunition.

Any other right in the Bill of Rights could not be subjugated upon such flimsy grounds. But the rights embedded in the Second Amendment are unwanted by some and unappreciated by many. “The right to keep and bear arms is apparently this Court’s constitutional orphan.”

Beyond the Supreme Court, the Second Amendment has been described as “the Rodney Dangerfield of the Bill of Rights.” Well, Mr. Dangerfield can feel better about himself now, because with Proposition 63, the Second Amendment gets even less respect than he does. 

There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants and terrorists are poisonous; guns in the hands of law-abiding responsible citizens are the antidote. To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally-protected right to keep and bear firearms and ammunition. No legislature or popular vote has the constitutional authority to dictate to a citizen that he or she may not acquire ordinary and popular ammunition for his or her guns. Nor may the acquisition process be made so unreasonably difficult that she simply throws up her hands and surrenders the right. 

Like the minors [buying wine online] who want instant gratification and for whom waiting upon interstate shipping is a discouragement, some ammunition buyers bent on immediate crime want ammunition right away and would likely be frustrated in their criminal purposes by waiting for interstate shipping of ammunition. Also, it is not hard to imagine that a prohibited person would not want to lead law enforcement to his door by internet-ordering ammunition to be delivered to his home address. 

The right to keep and bear arms is the insurance policy behind the right to life. If a state regulation prevents a citizen from protecting his life, his other constitutional rights will be superfluous. 

 Law-abiding citizens are imbued with the unalienable right to keep and bear firearms along with the ammunition to make their firearms work. That a majority today may wish it were otherwise, does not change the Constitutional right. It never has. California has tried its unprecedented experiment. The casualties suffered by law abiding citizens have been counted. Presently, California and many other states sit in isolation under pandemic-inspired stay-at-home orders. Schools, parks, beaches, and countless non-essential businesses are closed. Courts are limping by while police make arrests for only the more serious crimes. Maintaining Second Amendment rights are especially important in times like these. Keeping vigilant is necessary in both bad times and good, for if we let these rights lapse in the good times, they might never be recovered in time to resist the next appearance of criminals, terrorists, or tyrants.