SAN DIEGO (CN) – During a nearly four-hour marathon court hearing Thursday, a federal judge asked tough questions about California’s high-capacity magazine ban – including commentary peppered by references to bazookas, grenades and protection from rape – and questioned whether he could stop California from outlawing magazines that fire more than 10 rounds.
U.S. District Judge Roger Benitez pointed to a stack of hundreds of pages of briefs filed prior to the summary judgment hearing, noting, “I’ve done my best to read through all this and digest it.”
Virginia Duncan and the California Rifle & Pistol Association asked Benitez to find that Proposition 63 – which limits the types of magazines gun owners in California can possess – violates their Second Amendment rights.
Last year, Benitez granted Duncan a temporary restraining order that struck the proposition’s requirement that gun owners surrender lawfully purchased property or become subject to criminal prosecution.
Anna Barvir, representing Duncan with Michel & Associates, said the high-capacity magazine ban was a flat ban that took away “items chosen by law-abiding citizens for self-defense.”
Barvir said her client uses high-capacity magazines to protect livestock from predators such as coyotes.
“It’s not a correct statement to say large-capacity magazines are not used for hunting,” Barvir said.
When Benitez asked why homeowners could not sufficiently protect themselves using guns equipped with the 10-round magazine allowed under state law, Barvir said it wouldn’t help in an assault with multiple attackers.
“You would not be able to neutralize so many assailants. You’d have to be a really good shot,” Barvir said.
Benitez interrupted both sides throughout the court hearing to ask for statistics on gun violence and the involvement of high-capacity magazines in such incidents, but neither Barvir nor John Echeverria with Attorney General Xavier Becerra’s office could provide the answers the judge sought.
“When does the court have the ability to say enough is enough?” Benitez said.
“How do we make the decision of how far we allow the state to interfere in what is arguably protected by the Second Amendment?” he added. “None of us would want one of our neighbors to own a bazooka or hand grenade but if you read the Second Amendment that would probably be okay.”
When Echeverria’s turn to defend the state law arrived, Benitez suggested gun deaths caused by high-capacity magazines are “statistically very small” compared to all gun deaths.
But in response to Benitez’s remark that “you’re not really solving the problem by banning these,” Echeverria said the government’s goal in enacting the ban was not only to stop mass shootings but to mitigate the lethality of shootings using high-capacity ammunition rounds.
“Bans on capacity size increase the frequency in pauses of public mass shootings. Even if it’s just seconds, those seconds are lives,” Echeverria said, noting that perpetrators used high-capacity magazines in 9 out the 10 most deadly recent mass shootings.
Echeverria also said high-capacity magazines are used disproportionately to murder law enforcement officers.
Benitez reminded Echeverria of the Supreme Court decision in District of Columbia v. Heller, which found military-grade weapons must be both dangerous and unusual to escape the protections afforded by the Second Amendment.
The judge also challenged the piecemeal approach the government has taken in addressing public safety concerns regarding guns. He questioned the “incremental way we’re addressing the Second Amendment,” hypothesizing the government could use the same arguments to enact a ban on lower capacity magazines in the future.
“Why should the government be so arrogant as to tell law-abiding citizens: ‘You know what? Too bad, so sad. If you had 17 rounds you would have been able to stop that assailant and now you’re raped and now you’re dead,’” Benitez said.
“This is speculation your honor,” Echeverria said in a raised voice.
“It’s not your honor’s role to redraw those lines,” he added. “That’s for the democratic process.”
“I understand your honor has issues with the lines drawn by the state and the court has legitimate concerns about people being able to protect themselves, but it’s based on speculation, on ‘what if’ scenarios,” Echeverria said.
Benitez asked for additional briefs on the Second Amendment to be filed within 30 days, with responses due 10 days later. He indicated he will rule on the summary judgment motion after that.
Benitez was appointed to the Southern District of California by former President George W. Bush.
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