One of the problems with common sense, it seems, is that it appears to be considerably less common than it once was. Instead of definitive answers, you can opt for “choices”. When it comes to gender, for example, you can “identify” rather than being forced into the old-fashioned male/female stereotypes.
There’s just one problem with the ability to identify- it requires either the application of some very convoluted logic or equally involved modifications of our organic plumbing.
It’s the same with the law. It isn’t designed to “bend” with the political wind, it’s designed to stand fast. When it wavers, there’s a decided absence of the measuring standard by which we distinguish between two very different things: right and wrong. And there is a difference.
That’s why last week’s amazingly well-reasoned decision by Federal Judge Roger Benitez that ruled California’s ban on high-capacity magazines is worth noticing. Judge Benitez’s ruling in Duncan v. Becerra has thrown the anti-gun crowd on the west coast into a veritable hissy fit.
In fact, California Attorney General Xavier Becerra (yes, the Becerra of v. Becerra) has already filed a motion to stay Friday’s ruling. He is appealing, of course, to the Ninth Circuit Court of Appeals in San Francisco. The same Court of Appeals that leads all the other courts in overturned rulings before the Supreme Court and has earned, many times over, the nickname “the nutty Ninth”.
So it becomes, as was observed by our colleague Dave Workman, a likely case of political correctness versus the law. In the Ninth of today, it’s not unreasonable to predict Judge Benitez will be overturned, and the whole matter will then be appealed to the Supreme Court.
Not that the SCOTUS of Chief Justice John Roberts has a terrific record of acting - at least voluntarily- on Second Amendment issues. In fact, this SCOTUS has managed to skirt all but the most non-controversial cases possible when it comes to the thorny problem of the Second Amendment.
That’s why I’m pretty happy after reading Judge Benitez’s whopping 86-page decision. Not just because he treats the Constitution as the law, but he also takes time to remind people that they may “cede liberty to their government in exchange for the promise of safety. Or government may gain compliance from its people by forcibly disarming all. In the United States, the Second Amendment takes the legislative experiment off the table.”
That’s quite an affirmation from any judge. But he wasn’t done, continuing “Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights. An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity.”
With that bit of language, Judge Benitez let the supporters of California’s Proposition 63 know that, despite the liberal support of a measure that forced others (always a key) to give up a right wouldn’t last long in his courtroom.
It’s also quite telling that there’s more than a little commentary on the pop culture arguments used by California’s Attorney General in making his case for the magazine ban. He quietly eviscerated Becerra’s use of polls and studies rather than being able to cite police reports and/or statistics to back his case for the actual usefulness of this ban.
My favorite passage makes a great pull-quote if you’re laying out magazines, but it’s also a point that anyone supporting the Second Amendment might want to memorize:
“Nothing in the Second Amendment makes lethality a factor to consider because a gun’s lethality, or dangerousness, is assumed (my italics). The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.” (Again, my italics)
About the argument that increased capacity equals a greater danger of “collateral damage” the judge pointedly noted that “the State has not identified one incident where a bystander was hurt from a citizen’s defensive gun use, much less a defensive use of a gun with a high-capacity magazine.”
“That worrisome scenario,” Benitez pointed out, “is improbable and hypothetical.”
Two great words when it comes to describing some of the “reaches” used to make the case against the Second Amendment: “improbable” and “hypothetical.”
Guess I’m “identifying” as a “deplorable” , but I’m thinking we could use a few more jurists like Judge Roger Benitez in the court system.
—Jim Shepherd
