Capitol Alert

‘This opinion is not normal’ — Gun control advocates criticize high capacity magazine ruling

Gun control advocates expected U.S. District Court Judge Roger T. Benitez’ ruling striking downa California initiative restricting the size of firearm magazines. But they didn’t anticipate the way he did it.

In a fiery 86-page decision released last week, Benitez — appointed to the bench by George W. Bush in 2003 — cited a number of burglary-homicides where he said the amount of ammunition available made the difference between life and death.

He said high-capacity ammunition magazines are protected by a Second Amendment drafted by “colonists who cherished individual freedom more than the subservient security of a British ruler.”

Supporters of California’s law, which voters approved in 2016 as Proposition 63, were startled by the tone of Benitez’s ruling.

“This opinion is not normal,” said Ari Freilich, California legislative affairs director for the Giffords Law Center to Prevent Gun Violence, which filed a brief in support of the magazine ban.

In his ruling, Benitez dissected some of the state of California’s evidence, including a Mother Jones magazine report on the epidemic of mass shootings in the United States. He critiqued the magazine’s descriptions of California shootings and questioned whether restrictions on magazine capacity would have stopped a shooter.

“Mass shootings are tragic. But they are rare events,” Benitez wrote.

Feilich’s organization was founded by former Rep. Gabby Giffords, who was nearly killed in an Arizona mass shooting on Jan. 8, 2011.

“We profoundly and deeply disagree” with Benitez, said Freilich.

Freilich said the killer in that case was aided by high-capacity magazines.

“Before he could be subdued, a 9-year-old girl was shot and killed by his 13th bullet,” he said, referring to Christina Taylor-Green.

Had the shooter had a 10-round magazine, “that little girl would probably be alive today,” Freilich said.

Freilich also voiced concern over Benitez’ citation of colonists rebelling against the British as justification for large-capacity ammunition magazines being allowed in the hands of the public.

“The judge does at times suggest that military style weaponry may be the most protected by the Second Amendment,” he said. “He was citing the ability to make war against the government, which is something I think is absurd and dangerous.”

Conversely, the NRA and gun rights advocates have hailed the judge’s ruling.

NRA Institute for Legislative Action Executive Director Chris Cox said in a statement that “Judge Benitez took the Second Amendment seriously and came to the conclusion required by the Constitution. The same should be true of any court analyzing a ban on a class of arms law-abiding Americans commonly possess for self-defense or other lawful purposes.”

Freilich worried about what would happened if Benitez’ rhetoric was followed “to its logical conclusion,” asking if the judge also believed restrictions should be lifted on machine guns, tanks and grenade launchers.

“That’s just not where the country is,” Freilich said.

In his opinion, Benitez wrote that “because machine guns, like grenades and shoulder-fired rocket launchers, are not commonly possessed by law-abiding citizens for lawful purposes, they are specific arms that fall outside the safe harbor of the Second Amendment.”

California Attorney General Xavier Becerra filed a motion requesting a stay on Benitez’ ruling on Monday, saying in a statement that “we intend to protect our people and our gun safety laws from senseless attacks. We refuse to go backwards.”

The initiative has not yet been enforced because of legal challenges.

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