by Charles C.W. Cooke - Thursday, August 31, 2017
One federal judge is all that stands between California gun owners and the unprecedented confiscation by the state of millions of dollars of legally purchased property.
This feature appears in the September ‘17 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.
At the end of June, California was set to start enforcing a law that America’s gun owners are routinely assured that “nobody, anywhere is proposing.” Had the state not been prevented from implementing the rule by a sensible federal judge, an extraordinary precedent would have been set.
The law to which I am referring, passed by state-level referendum in 2016, requires the confiscation of all firearms magazines that can hold more than 10 rounds—even if those magazines were purchased before the ban. Or, put another way: Having promised gun owners in 2000 that their now-illegal-to-sell property would be safely “grandfathered,” Californians elected brazenly to renege on the deal. Under the terms of the statute, law-abiding Americans would have been obliged to destroy, hand over or transfer out of state their now verboten property.
And if they refused? They’d be guilty of a misdemeanor, and their magazines would be taken by force.
The word used above bears repeating—confiscation. Time and time again during our debates over firearm law, advocates of the Second Amendment are scoffed at, accused of “fearmongering” and cast as unreconstructed extremists for raising the specter of seizure. All progressives want, we are told, is “common-sense” legislation. “Nobody is going to take your guns!” is a favorite refrain. “Why are you so suspicious?”
The answer, perhaps, is this: We are suspicious because it is abundantly obvious that for too many gun controllers, this is the ultimate aim. And it is clear that, should it come, it will come in stages. As history has taught us well, the enemies of individual liberty never openly suggest the worst-case scenario until, all of a sudden, they do. And by then, it is invariably too late, for the road has already been traveled.
Without compensation, the state aims to take private property that was legally obtained, and that it had previously made assurances would remain so.Seventeen years ago, California was “just” banning the sale of “high-capacity” magazines. Today, the state is “only” confiscating those same magazines. Tomorrow, it’ll be something else. After all, the advocates will say, “We already confiscate magazines.” And so, bit by bit, is the salami sliced.
How extreme is California’s on-hold policy? Consider, if you will, that even at the height of the foolish panic that was Prohibition, the restrictions imposed fell only on the production and transfer of alcoholic drinks. By contrast, those who already possessed those beverages that were forbidden by the Volstead Act were left well alone. This was not unusual. Indeed, it is tough to find a good analog in all of American history for what California is trying to do. Without compensation, the state aims to take private property that was legally obtained, and that it had previously made assurances would remain so. In other countries, such behavior is routine. In America, however, it is unheard of. Such is the zealotry of the anti-gun Left that it is happy to throw any liberty out of the window so long as it can dent the integrity of the Second Amendment. Next time you hear promises about “limited measures,” you’d do well to remember this day.
In enjoining the measure, U.S. District Judge Roger Benitez made short shrift of the reasoning presented by the state. The law, wrote Benitez, illustrates the “tyranny of the majority,” which had used its power to deny fellow Americans their “Second Amendment rights and just compensation”; which had added yet another “criminal law trap” to California’s existing “matrix of gun control” regulations; which had made it even harder “for people of common intelligence who desire to obey the law” to do so; and which had effectively guaranteed that “any previously law-abiding person in California who still possesses a firearm magazine capable of holding more than 10 rounds will begin their new life of crime.”
Line by line, Benitez then dismantled the defense’s brief. There is no compelling evidence, he ruled, that mass shootings are made worse by the availability of so-called “high-capacity” magazines, and no good case that banning them would have a meaningful effect on the safety of the public. In consequence, the law both violates the protections applied to “common pistol and rifle magazines used for lawful purposes” that were laid out in Heller, and fails to represent “a reasonable fit,” thereby unduly burdening a core constitutional right. In a welcome move, Benitez also made sure to set the Second Amendment within its proper context. “The phrase ‘gun violence,’” he wrote, “may not be invoked as a talismanic incantation to justify any exercise of state power. Implicit in the concept of public safety is the right of law-abiding people to use firearms and the magazines that make them work to protect themselves, their families, their homes, and their state against all armed enemies, foreign and domestic. To borrow a phrase, it would indeed be ironic if, in the name of public safety and reducing gun violence, statutes were permitted to subvert the public’s Second Amendment rights—which may repel criminal gun violence and which ultimately ensure the safety of the Republic.”
There is no compelling evidence, (Judge Benitez) ruled, that mass shootings are made worse by the availability of so-called “high-capacity” magazines, and no good case that banning them would have a meaningful effect on the safety of the public.To these crucial observations we might add another: Measures such as this one breed a deserved contempt for the law. Because they are not obsessed with politics, most people do not follow every change in the rules, which is one reason among many that it is best to keep regulation to a minimum. In Connecticut—a state that is hardly politically and culturally akin to, say, Texas or to Montana—the reaction to a law that required the registration of “assault weapons” and “high-capacity” magazines was widespread ignorance, or indifference, or both. According to police estimates in Connecticut, only 15 percent of residents who owned the affected weapons complied with the new rules. As UCLA’s Adam Winkler has put it, confiscation and registration statutes yield “no compliance from gun owners” as a general matter, and in California specifically, “no gun owners are giving up their high-capacity magazines or selling them out of state.”
Equally unmoved by the changes are the police, who, even in blue states, tend to make it clear that they will not be actively enforcing such measures. After Colorado banned the sale and transfer of magazines that could hold more than 15 rounds, the majority of sheriffs publicly announced that they would all but ignore the change. In the lead-up to the law’s effective date in California, a similar recalcitrance had been on display, as police departments and sheriffs alike told newspapers that they had different priorities. In the grand scheme of things, it seems that the chance to enforce arbitrary limits on a codified constitutional right is not why America’s police officers elect to get up in the morning.
In an attempt to spin these facts into an ersatz defense of the law, some within the gun control movement have inquired as to what exactly California’s critics are so worried about. After all, they ask, if the law won’t be enforced stringently enough to amount to a mass confiscation—and if many who would be affected are either unaware or obstinate—then why are its opponents as upset as they are? This, naturally, is both an absurd and a dangerous position.
For a start, we do not give credit to the architects of bad rules when those rules are incompetently enforced. On the contrary, if one thinks a law is unlikely to be upheld—or that it is unrealistic to consider that it will do anything meaningful or virtuous—one should of course oppose that law. Moreover, far from representing a welcome reprieve, the prospect of selective or desultory enforcement is a considerable problem in its own right. Who exactly do we imagine will bear the brunt of California’s folly? Will it be Hollywood celebrities, whose homes are fortresses and who have high-flying lawyers on full-time retainers? Or will it be poorer Americans, who live in more dangerous areas and are more likely, as a result, to interact with the police?
And how do we imagine we can avoid turning victims of crime into accused criminals themselves? Suppose a man calls the cops after his home has been burgled, and, in the course of the resulting search, is found to have innocently held onto his standard-capacity magazines? Is it fair for him to be prosecuted by the pure chance of his victimhood? And what do we envision that such a trend will do to relations between the citizens and the authorities—especially when those citizens learn that there are exemptions in the law for retired police, for the drivers of armored cars, and for those working on movies made in Hollywood? The answer, I suspect, is “nothing good at all.”
Suppose a man calls the cops after his home has been burgled, and, in the course of the resulting search, is found to have innocently held onto his standard-capacity magazines? Is it fair for him to be prosecuted by the pure chance of his victimhood?And all this for what? Having read Benitez’s blistering and forensic opinion, it is hard but to conclude that the state is chasing unicorns. All too often we forget that our laws are not suggestions or mere statement of intent, but mandatory instructions enforced at the bayonet’s point. As it was the utmost of folly to make America’s drinkers outlaws, it is a severe mistake to render peaceful and friendly citizens as the enemies of the state, solely because they own property that was bought in good faith and good standing, and which is protected by the Constitution under which they live. The purpose of government is to uphold unalienable rights and to protect individuals against those who would do them harm. California is practicing that art badly.
Thrilling as it was to read Benitez’s enjoining opinion, the next step may be less salutary. Explaining his decision to halt the law’s introduction, Benitez mentioned the “hundreds of thousands, if not millions, of otherwise law-abiding citizens” whom he was sparing from “an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property.” Alas, one cannot imagine that the outré U.S. Court of Appeals for the 9th Circuit will care too much about this.
Double alas: It is to the 9th Circuit that the case will head next. Which means that the injunction might well be lifted and Californians could have to make precisely the “untenable choice” that Benitez was attempting to forestall. If this indeed comes to fruition, the only respite available will be from the U.S. Supreme Court, which, if it so desires, can issue an emergency reinstatement of the injunction and then take the broader case at its leisure.
Whatever it does, the stakes seem set to be enormous. If the Supreme Court were to reverse the 9th Circuit, it could make it clear that the confiscation of legally purchased firearms and magazines is prohibited across all of America. Should it rule the other way, it would usher in open season in other authoritarian states. And should it decline to get involved at all—which, given its recent reluctance to hear another Second Amendment case, is not beyond the realm of possibility—it will affirm once again that California is permitted to secede from certain parts of the established constitutional order, even as the underlying question remains unresolved.Charles C.W. Cooke is the editor of National Review Online.
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