Preliminary injunction issued against Prop. 63

Federal district court Judge Roger Benitez has issued a preliminary injunction stopping enforcement of Prop. 63‘s ban on the possession of standard capacity magazines. The judge found that irreparable will be done to law abiding California gun owners should the ban be allowed to go into effect pending litigation.

The Court does not lightly enjoin a state statute, even on a preliminary basis.
However, just as the Court is mindful that a majority of California voters approved
Proposition 63 and that the government has a legitimate interest in protecting the public
from gun violence, it is equally mindful that the Constitution is a shield from the tyranny
of the majority. Plaintiffs’ entitlements to enjoy Second Amendment rights and just
compensation are not eliminated simply because they possess “unpopular” magazines
holding more than 10 rounds.

If this injunction does not issue, 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. That is a choice they should not have
to make. Not on this record.

Accordingly, with good cause appearing for the reasons stated in this opinion,
Plaintiffs’ motion for a preliminary injunction is GRANTED.

Judge Benitez found that while the new law arguably fails the simple 2nd Amendment tests suggested by the Supreme Court in the Heller case, the law also likely fails the more lenient tests favored by the Ninth Circuit. The judge, who is based in San Diego, is bound to use the Ninth’s screwball tests; tests that seem like they were concocted to uphold whatever gun law comes before that court! But even under that low bar, the judge thinks that the State would fail to make its case.

The judge extensively examines the arguments presented by Attorney General Xavier Becerra’s office. The DOJ presented over 3100 pages of “evidence” supporting the law, but most of it can be summed up by the Dothraki phrase Me nem nesa; “It is known”. The “evidence”, which the court was apparently supposed to accept without question, is mostly anecdote, news clippings, and position papers. There’s also a curious reliance upon Mother Jones as an authority. (Some of you will recall that I’ve cited Mother Jones in these pages. But, I did it in the sense of “Look, if even Mother Jones says that    (Fill in the blank)    isn’t true, then it isn’t true.”) We were all just supposed to “know” that Prop. 63 is vital to public safety and that an injunction was thus unjustified. (For you GoT fans, the judge was expected to play the part of the Dothraki girls telling Daenerys Targaryen that “it is known” that dragons don’t exist anymore while there were all in the same tent with three dragon embryos!)

One a side note for those of you keeping score: Prop. 63 was also intended to be one of the jewels in Gavin Newsom’s gubernatorial crown. The whole thing wasn’t so much about keeping Californians safe as it was about getting the slimey, used car salesman into the Governor’s mansion.