Will September 22, 2023, be celebrated by gun control activists as a turning point in the “epidemic of gun violence”? Will Second Amendment advocates mark it as the beginning of the end for unconstitutional restrictions on magazine size – and perhaps even bans on so-called “assault weapons”? Regardless of whether the day lives on in infamy or as a fond memory for either side of the debate, big moves were made on Friday to advance both causes.
When President Joe Biden announced his new White House Office of Gun Violence Prevention, he probably did hope it would join other historic milestones in the erosion of the Second Amendment like the National Firearms Act of 1934 and the Gun Control Act of 1968. But US District Judge Roger Benitez had other plans. Not long after the president spoke, the federal judge ruled that California’s high-capacity magazine ban is unconstitutional.
Gun Control by Executive Order: The Biden Way
After a few days of media hype, President Biden held a gathering in the Rose Garden to announce the new White House Office of Gun Violence Prevention. The office will be overseen by Vice President Kamala Harris and directed by Stefanie Feldman, a gun control advocate who served Biden as a policy advisor on gun violence and climate change.
What will the new office actually do? That’s hard to say. Its stated purpose is to “drive and coordinate the government in a nationwide effort to reduce gun violence in America.” But how? The executive branch is limited in its ability to change the rules it’s entrusted to enforce – and for good reason. That said, Biden has a history of stretching that power and reaching for more. The president has signed more than 20 executive orders since taking office targeted specifically at ending what he calls the epidemic of gun violence, and among those were directives leading the ATF to change how it defines pistol braces and even firearms in general.
(Photo by Alex Wong/Getty Images)
Biden offered four ways the office can achieve its goals, from expediting the implementation of the Bipartisan Safer Communities Act to supporting survivors, identifying new executive actions, and expanding the “coalition of partners” working on gun violence. It’s all vague enough to be simple platitudes, which, along with the so-called facts the president presented regarding gun deaths, the people he appointed to run the office, and his promises to bring back an assault weapon ban, could well mean it's little more than a campaign stunt – an office of anti-gun propaganda and pandering to progressive voters more than anything else. Still, there is potential for so much more, if the administration is willing to bend the rules a bit.
Judge Benitez Rains on Biden’s Parade
President Biden wasn’t the only one with big news for gun owners on Friday. For those who keep up with the Golden State’s attempts to disarm the people, Roger Benitez may be a familiar name. The US district judge struck down California’s ban on magazines declared by the state to be “high capacity” back in 2017. Of course, the Ninth Circuit then overturned his ruling. The case was appealed to the US Supreme Court, and that is where it remained until New York State Rifle & Pistol Association v. Bruen was decided, changing the way gun control laws must be examined. The High Court vacated the earlier ruling and sent the case back to the lower court to be redecided in light of Bruen. On Friday, not long after Biden announced his new office, Judge Benitez once again ruled the magazine restriction unconstitutional.
“Removable firearm magazines of all sizes are necessary components of Semiautomatic firearms. Therefore, magazines come within the text of the constitutional declaration that the right to keep and bear arms shall not be infringed,” he wrote. “Because millions of removable firearm magazines able to hold between 10 and 30 rounds are commonly owned by law-abiding citizens for lawful purposes, including self-defense, and because they are reasonably related to service in the militia, the magazines are presumptively within the protection of the Second Amendment.”
To restate the point in fewer words, the magazines are necessary to the function of the gun and therefore also protected by the Second Amendment. Will the Ninth Circuit once again overturn his ruling? Perhaps – but it seems unlikely that would stand at the Supreme Court.
If California’s magazine restriction is unconstitutional, then any federal law doing the same would be as well. What’s more, the judge’s ruling that magazines are protected because they’re necessary for semiautomatic weapons implies the type of firearms that use them are also protected. What does that mean for the state’s assault weapon prohibition – or Biden’s dream of a permanent federal ban? While gun control advocates may remember the date as a great day for their cause, those who prefer their freedom can, too. Like Bruen and DC v. Heller back in 2008, this decision could rock the foundations of strict gun control in America.
From the National Firearms Act of 1934 to the Bipartisan Safer Communities Act of 2022 and the two dozen or so anti-gun executive orders signed by Biden so far, the Second Amendment has weathered many attacks over the years. But from Heller to Bruen, the courts have, at times, pushed back and held the line. Biden’s new White House office and Benitez’s ruling are just the latest salvos fired in the decades-long war. The important question is who gained more ground this time – and which cause will ultimately prevail – gun control or liberty?
