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Rhode v Becerra

Regardless of the rubes on the 9th Circuit, St. Benitez is my spirt animal.

Most of you are well aware by now of his order in Rhode v Becerra.  You are also probably aware that the State was not about to tolerate a judge telling it to obey the Constitution.  It immediately filed an appeal of the injunction and, in a somewhat precedent-setting fashion, two judges on the 9th Circuit granted an administrative stay on the injunction.  More specifically, these two judges agreed to the stay at 9:54pm on a Friday night!  To put this in perspective… when we have a massive abuse of judicial conduct and we ask for a stay, getting the appellate court to even return a call is like pulling teeth.  But… when the State’s gun control scheme is in jeopardy… well… then it is at the ready!

And who are these two judges? 

Judge Mary Murguia (Obama appointee) and Judge Mark Bennett (Trump appointee).  Yes…you read that right, Trump appointee… Bennett was the Attorney General in Hawaii and has been a huge proponent of gun control.  When the President appointed him to the 9th Circuit we scratched our heads… now we are pulling out our hair!

The key word in the opening paragraph is “administrative”.  As an administrative stay, the court is under no obligation to hear the interlocutory appeal in a timely fashion.  They can sit on it.  Frankly, that is exactly what I am expecting them to do.

Still, St. Benitez wrote one hell of an opinion and, to honor him, we need to review it:

When the people of California voted for Proposition 63, they created a beast of a system.  Prop 63 forced individuals who wanted to sell ammunition to become licensed “ammo vendors”.  This also required that all ammo shipments purchased online be sent to someone with an ammo vendor’s license, where the final handing-over of the merchandise would take place “face-to-face”.  It also barred people from traveling to a free state to purchase ammunition and bring it back to California. 

The most onerous part, though, without question is the “background check” system.  A purchaser taking possession of ammunition must undergo a background check by CA DOJ that is slow, complicated, and yields scores of false denials.

Kim Rhode, the Olympic shotgun champion who burns through a ton of shotgun shells each week, became the named plaintiff on this lawsuit.  Through the expertise work of Michele and Associates, in conjunction with the CRPA, the case has been presented to Judge Benitez in San Diego.  The Plaintiffs moved for a preliminary injunction of the law, basically asking the judge to put it on hold until the conclusion of the trial set to test the law’s Constitutional validity. 

For a preliminary injunction to be issued, the court must find two things:  1) That the Plaintiffs have a high likelihood of prevailing at trial, and 2) They will suffer an irreparable harm if the injunction is not granted.

Last Thursday Judge Benitez issued said injunction.

If you want to read the opinion (and I suggest you do)… you can find it here:  https://michellawyers.com/wp-content/uploads/2020/04/2020-04-23-Order-Granting-MPI.pdf

Let’s discuss:

St. Benitez agreed the ammo law is probably unconstitutional (I say probably because this is a finding for the preliminary injunction… not the final decision.).  His basis for his decision is four-fold:

  1. “Criminals, tyrants and terrorists don’t do background checks.”  (18-cv-802-BEN at page 2) (God, I love this line!!!);
  2. The regulations deter law-abiding citizens from getting ammo;
  3. The system has rejected non-prohibited persons 16.4% of the time; and,
  4. The anti-importation component of the law directly violates the federal dormant commerce clause.

(If you have arrived here from our newsletter, continue reading here…)

In a lengthy discussion, Benitez then goes on to explain the background of the law, not specifically how the law came to be, but the working implementation of the law. 

He does not hold back his disdain with the State.

“The Second Amendment is not a ‘loophole’ that needs to be closed.  See Proposition 63 § 3 describing various Second Amendment freedoms as loopholes at ¶5 (‘Although California has led the nation in gun safety laws, those laws still have loopholes… We can close those loopholes.’); at ¶6 (re: no background checks for the sales of ammunition: ‘we should close that loophole.’)” (18-cv-802-BEN at page 6)

One of my favorite parts, ironically, involves illegal aliens.  In order to start the process of buying ammo, the purchaser needs to have a valid California ID that either has the robustness of a “Real ID” or, alternatively, supporting documentation like a passport or birth certificate. 

The State’s argument is that under federal law, an illegal alien cannot be in possession of ammunition.  Therefore, we need this law to prevent illegal aliens from committing the crime of possessing ammunition!

On this one, Benitez turns on the State. 

After declaring itself a sanctuary state for illegal aliens, he reasons that even if an illegal alien were to attempt to buy ammunition, there is little evidence that the activity would be reported to the feds.  More importantly, since the illegal alien would not actually be in possession of ammunition, no crime would have occurred that would have necessitated a law enforcement contact. 

After eviscerating the State on the working model of the ammo purchasing process, he then turns to his legal analysis. 

He is very clear that the courts should use what he refers to as the “Heller Analysis”.  This comes from the US Supreme Court case Heller v District of Columbia.  He calls it a “hardware test”. 

“Does the law ban the types of firearms commonly used for a lawful purpose… As applied to laws prohibiting ammunition, the simple Heller test would ask:  Is the ammunition commonly used by law-abiding citizens for a lawful purpose?  If yes, then it is protected ammunition.” (18-cv-802-BEN at page 51)

He is clearly irked that circuit courts have essentially, and wrongfully, ignored the “test” of Heller, and are instead using… and boy does he nail this… a test he calls, “the tripartite binary test with a sliding scale and a reasonable fit.”(18-cv-802-BEN at page 50)

Other anti-gun justices would prefer to simply call it “intermediate review”… but Judge Benitez calls them on this, and really parses down their “test”.

He then, as he did in Duncan, goes the “extra mile”. 

He shows how the ammo law fails under the Heller test.  Rather than ending the analysis there, he shows how it also fails under his humorously-titled tripartite binary test with a sliding scale and a reasonable fit.

After decimating the State on 2A grounds, Judge Benitez then takes on the dormant commerce clause issue. 

The Federal government enjoys exclusive jurisdiction when it comes to the regulation of interstate commerce.  When a state sets up restrictions on its citizens being able to purchase items from out of state, essentially engaging in protectionist policies for its own native businesses, that is referred to a dormant issue.  Here Benitez focuses his attention on retailers not being able to directly sell to California citizens, instead being forced to open subsidiaries in California to facilitate the transactions, or being forced to engage with essentially a competitor (with price markups) to consummate the transaction.  He does not go into the issue of purchasing ammo out of state, and bringing it back in, nor does he deal with the non-California resident (say a hunter visiting California for a hunt) and not being able to acquire ammunition.   

The absence of these arguments is interesting, but does not change the final analysis:  The ammo laws interfere with interstate commerce and, thus, intrude on a wholly federal activity. 

As with all of his decisions there is some “red meat” orbiter dictum that will make any patriot proud:

“With its new overarching 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”.  [Alluding to the State’s belief that the Second Amendment is nothing but a “loophole”.] (18-cv-802-BEN at page 40)

Channeling Justice Thomas in Sylvester v Becerra:

“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.” (18-cv-802-BEN at page 94)

Then there is this: 

…”The Second Amendment has been described as the “Rodney Dangerfield of the Bill of Rights.” Mance v Sessions, 896 F.3d 390 (5th Cir. 2018) (Willet, J. dissenting).  Well, Mr. Dangerfield can feel better about himself now, because with Proposition 63, the Second Amendment gets even less respect than he does.

You might not know it, but this case is about what should be a muscular Constitutional right, and whether a state can impinge on that right based upon a popular vote and unconvincing research.  It should be an easy question and answer.  Government is not free to impose its own pure policy choices on American citizens where Constitutional rights are concerned.  As Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of state action.  California may certainly conceive of an extreme policy like any amount of ammunition is dangerous in the hands of criminals and, therefore, it is good public policy to keep ammunition out of the hands of every citizen.  A contrary policy position ( a policy many other states endorse) is that ammunition in the hands of law-abiding citizens makes every

individual safer and the public safer. Either way, the Second Amendment takes that choice of policy away from state government.” (18-cv-802-BEN at page 95)

BOOM!!!

And we will end with this one:

“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 citizens is 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.” (18-cv-802-BEN at page 96)

BOOM, BOOM  and BOOM!!!!!

So what happens now?

Well… at the moment the decision was released laws regarding the transfer of ammunition pursuant to Prop 63 were taken off the books… temporarily. 

Remember, this is a preliminary injunction… NOT the final decision.  The final decision will most likely come from a motion for summary judgment that will be requested a few months from now.

The State could theoretically appeal his preliminary injunction to the 9th Circuit.  It tried this in Duncan v Becerra when he issued an injunction early on to make simple possession of standard-capacity magazines illegal pursuant to Prop 63.   The State appealed the injunction and the 9th Circuit basically told the State to pound sand.

It was not about to overturn an injunction.  The proper course of action would be to wait until a final decision, then appeal that.

There is a good chance the State has learned its lesson and will simply wait until a final decision in Rhode before seeking an appeal. 

We shall see.  Regardless… St. Benitez de San Diego is a hero to patriots, and we are deeply, deeply thankful for his ruling.

Comments (2)

  • Jim Reply

    Why is it that the state can take away our right in an instant (hence Friday night Hail Mary ), but we have to wait for months to be able to buy ammo without the state interference?

    04/29/2020 at 08:59
  • Bill farone Reply

    The “will of the people”, people being given limited background context and edited information plus a dose of major fear, overrides the Constitution. Trump agrees and the next Democratic President and Congress love it. Your legal arguments seem totally correct so how do we get the ridiculous situation with COVID-19? Many of the actions taken are clearly against the Constitution. CA will reopen economically according to the State plan after Biden wins the Presidency. If Trump wins they will fight on until the “will of the people” can override the protections of the rest of the people. The Constitution only seems relevant when it aligns with the “will of the 51% majority”. The “people”have lost the whole idea of the Republic and the Constitution. Sad, but it seems true.

    04/29/2020 at 11:36

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