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The NRA Is Wielding New Firepower in the Courts

Francis Wilkinson
The NRA Is Wielding New Firepower in the Courts

(Bloomberg Opinion) -- In an 86-page decision in March, U.S. District Judge Roger T. Benitez prevented the state of California from banning large capacity magazines for semiautomatic firearms. In the process, the judge demonstrated both the reflexive gun worship associated with the National Rifle Association and why the NRA’s grip on President Donald Trump – and some of the federal judges appointed by him -- promises to wreak havoc for years to come.

The case began with a legal challenge to California’s Proposition 63, a ballot initiative that called for background checks for ammunition purchases and a ban on possession of magazines that hold more than 10 rounds of ammunition. The initiative was approved overwhelmingly in 2016, with 63 percent of the state’s voters supporting it.

Popular will, of course, cannot subjugate a constitutional right. But the Supreme Court’s 2008 Heller ruling, which for the first time established an individual right to firearm possession, acknowledged the legitimacy of gun regulations as a matter of tradition, law and common sense. Nine states and the District of Columbia have enacted some kind of ban on large-capacity magazines. A handful of different U.S. courts of appeals have ruled that such bans are constitutional.

Prop 63 was devised to be squarely within the framework of Heller, regulating large-capacity magazines of the sort that turned a country music concert in Las Vegas in 2017 into a killing field as the shooter fired more than 1,100 rounds into the crowd. Likewise, in Newtown, Connecticut, in 2012, the killer who murdered 20 children and six adults used a Bushmaster AR-15 semiautomatic rifle equipped with 30-round magazines. He fired more than 150 rounds in less than five minutes.

Mass shootings do not cause as much death and injury as more routine manifestations of gun violence. But it takes a peculiar point of view to conclude, as Judge Benitez did, that they are an “exceedingly rare problem” in a nation renowned for the frequency and lethality of its mass shootings.

Throughout his ruling, the judge displays a disturbing allegiance to the talking points and undocumented assumptions of the gun lobby. He states that in making his ruling he relies only on “hard facts and reasonable inferences drawn from convincing analysis.”

But the entire ruling is a mockery of that standard.

It begins like a feature story in a gun publication, recounting lurid tales of crime victims who fired multiple shots in self-defense. Notably unstated, however, is whether the stories have any bearing on a 10-round limit.

Benitez proceeds to casually dismiss the research of some of the nation’s leading gun violence experts while bestowing his judicial seal of approval on a Republican politician’s whine about the horrors of regulation.

The judge also cites a dubious study claiming that there are at least 2.2 million defensive gun uses by civilians each year, a conclusion that is widely disputed, including by Justice Department statistics.

Benitez complains that a 10-round magazine limit is arbitrary, then muses, without supporting evidence, that a 100-round magazine might be “uniquely dangerous.” He speculates that a ban on large-capacity magazines burdens “many” law-abiding Californians but offers no evidence.

Bizarrely, Benitez does not even accept that high-capacity magazines make guns more lethal by enabling shooters to continue firing without stopping to reload.

Some say that the use of “large capacity magazines” increases the lethality of gun violence. They point out that when large capacity magazines are used in mass shootings, more shots are fired, more people are wounded, and more wounds are fatal than in other mass shootings. That may or may not be true.

Although his ruling will likely be overturned by a higher court, Benitez’s trigger-happy logic may nonetheless be a harbinger.

The National Rifle Association invested at least $30 million – an unprecedented sum – in Trump’s election to the presidency. The gun lobby has been rewarded in part by the nominations Trump has made to federal courts, including the appointments of two pro-gun judges to the U.S. Supreme Court. (Justice Brett Kavanaugh’s resume includes one of the more unhinged Second Amendment opinions you’re likely to read.)

Benitez, who was appointed by President George W. Bush, may be an egregious case of a judge deeply in thrall to gun nuttery. He won’t be the last.

(Corrects reference in the subheadline to “high-capacity magazines” from “high-caliber magazines.”)

To contact the author of this story: Francis Wilkinson at fwilkinson1@bloomberg.net

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.

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