This article was published by The McAlvany Intelligence Advisor on Monday, April 27, 2020:
It’s becoming clearer all the time that when Donald Trump vacates the White House, he will leave behind a legacy of appointing constitutionalist judges. They will be tasked with the burden of restoring the U.S. Constitution and its Bill of Rights to its proper place in judicial reasoning. The impact of his appointments on the American culture will be generational.
One judge not appointed by Trump but by President George W. Bush makes the point. Born in Havana, Cuba and educated in law at Western State University, Roger T. Benitez was appointed to a new seat on the Southern District Court of California by President Bush in 2003.
His two recent decisions have thrust him into the public spotlight.
In 2016, California voters were persuaded that precious rights could be ignored in favor of faux security promised by anti-gun politicians. Laws were enacted limiting magazines to 10 rounds and requiring background checks on anyone purchasing ammunition.
The California Rifle & Pistol Association (CRPA), with funding from some private groups and individuals and the NRA, sued the state’s Attorney General, Xavier Becerra.
Benitez’s ruling on the first, Virginia Duncan v. Xavier Becerra, ran 86 pages. The judge reviewed all the reasons the State of California presented to support the law limiting magazines to just 10 rounds.
His ruling came down to this:
The magazine ban arbitrarily selects 10 rounds as the magazine capacity over which possession is unlawful. The magazine ban admits no exceptions, beyond those for law enforcement officers, armored truck guards, and movie stars. The ban does not distinguish between citizens living in densely populated areas and sparsely populated areas of the state.
The ban does not distinguish between citizens who have already experienced home invasion robberies, are currently threatened by neighborhood burglary activity, and those who have never been threatened.
The ban does not distinguish between the senior citizen, the single parent, and the troubled and angry high school dropout. Most importantly, the ban does not distinguish between possession in and around one’s home, and possession in or around outdoor concerts, baseball fields, or schoolyards.
The ban on magazines that hold more than 10 rounds amounts to a prohibition on an entire class of “arms” that is overwhelmingly chosen by American citizens for the lawful purpose of self-defense. The prohibition extends to one’s home where the need to defend self, family, and property is most acute.
And like the ban struck down in Heller, the California ban threatens citizens, not with a minor fine, but a substantial criminal penalty….
Under any level of heightened scrutiny, the ban fails constitutional muster.
The judge took the opportunity to review some history behind the Second Amendment:
The reason for the adoption of the Second Amendment was to protect the citizens of the new nation from the power of an oppressive state. The anti-federalists were worried about the risk of oppression by a standing army.
The colonies had witnessed the standing army of England marching through Lexington to Concord, Massachusetts, on a mission to seize the arms and gunpowder of the militia and the Minutemen-an attack that ignited the Revolutionary war.
With Colonists still hurting from the wounds of war, the Second Amendment guaranteed the rights of new American citizens to protect themselves from oppressors foreign and domestic.
So, now it is ironic that the State whittles away at the right of its citizens to defend themselves from the possible oppression of their State.
The second ruling by Benitez, in Kim Rohde v. Xavier Becerra, was just as clear. The judge said that it simply made no sense to require background checks for the purchase of ammunition, and the ban was unconstitutional as well:
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.
In this action, Plaintiffs seek a preliminary injunction enjoining California’s onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws.
For the reasons that follow, the motion for preliminary injunction is granted.
Those reasons included: 1) “criminals, tyrants, and terrorists don’t do background checks”; 2) “the implementing regulations systematically prohibit or deter an untold number of law-abiding California citizens from undergoing the required background checks”; 3) “the standard background check rejected citizens who are not prohibited persons approximately 16.4% of the time”; and 4) “the ammunition anti-importation laws [included in the laws] directly violate the [U.S. Constitution’s] Commerce Clause.”
The judge made the point, especially poignant at this moment in time when Americans have been far too willing to give up precious rights to gain precious little security:
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.
With more than 200 pages of tightly reasoned and carefully annotated sources, the judge has accomplished at least two important things: one, he has largely done the homework for the Supreme Court when these cases arrive on their docket.
And two, it perfectly reflects the importance of having a judge like Benitez standing in the gap and explaining succinctly and persuasively just how voters and anti-gun politicians simply cannot override those guarantees in a vapid quest for evanescent protection from criminals, terrorists, or tyrants.
Wikipedia tallies up the score so far:
As of April 25, 2020, the United States Senate has confirmed 193 Article III judges nominated by President Trump, including two Associate Justices of the Supreme Court of the United States, 51 judges for the United States Courts of Appeals, 138 judges for the United States District Courts, and two judges for the United States Court of International Trade.
There are currently 38 nominations to Article III courts awaiting Senate action, including 37 for the District Courts and 1 for the Court of International Trade.
There is currently one vacancy on the U.S. Courts of Appeals, 73 vacancies on the U.S. District Courts, two vacancies on the U.S. Court of International Trade, and four announced federal judicial vacancies that will occur before the end of Trump’s first term (one for the Courts of Appeals and three for District Courts).
If Mr. Trump succeeds in winning a second term, these and other appointments that open in the next four years will be transformational to the American republic.
Mercury News: Court reinstates California ammunition purchase law
Ammoland.com: California’s Ammo Background Check Law Knocked Down
Ammoland.com: BREAKING: California Reinstates Ammo Restrictions