The people of California wanted to protect residents of their state from precisely the kind of mass shooting that killed 12 people in Thousand Oaks on Wednesday. A federal judge wouldn’t let them.
In 2016, California voters approved Proposition 63 by 63 percent of the vote. The law’s centerpiece outlawed high-capacity magazines, defined as any magazine capable of holding more than 10 rounds of ammunition. Such magazines were used in some of the nation’s worst mass shootings, including Columbine, Aurora, Sandy Hook, Pulse Nightclub, and—since the measure passed—Las Vegas and Thousand Oaks. Gun rights advocates, including the California arm of the National Rifle Association, promptly filed a lawsuit, alleging a violation of their Second Amendment rights.
U.S. District Judge Roger T. Benitez, a George W. Bush appointee, blocked Proposition 63 in June 2017. The 9th U.S. Circuit Court of Appeals later declined to lift his injunction. In his ruling, Benitez declared that the law “is a poor fit as a means to eliminate the types of mass shooting events experienced in California.” He insisted that high-capacity magazines are “an incredibly rare danger to public safety.”
“Of the ten mass shooting events that occurred in California,” Benitez wrote, “only two involved the use of a magazine holding more than 10 rounds.” He reasoned that the law was a “poor fit” as means to increase public safety. And he concluded that, as a result, Proposition 63 likely cannot survive constitutional scrutiny.
Benitez expressly discounted a Mother Jones survey that found that half of 62 mass shootings between 1982 and 2012 involved magazines with more than 10 rounds. He ignored another study that found that high-capacity magazine shootings produced 60 percent more fatalities. And he overlooked the fact that mass shootings in Virginia fell when the state banned high-capacity magazines, only to rise once more when the ban was lifted.
But leave that data aside and consider the situation in California. Benitez wrote that “only two” mass shootings in the state had theretofore involved high-capacity magazines. Only two? These massacres were the 2013 Santa Monica shooting, which killed five civilians, and the 2009 Oakland shooting, which killed four police officers. You might expect these tragedies to influence the court’s reasoning. But Benitez insisted that it wasn’t entirely clear whether Proposition 63 would’ve kept these shooters from obtaining high-capacity magazines. And the “marginal good effects” the law might’ve had—that is, the lives it might have saved—didn’t justify the ban.
What interests lie on the other side of this dispute? Gun advocates claimed that they need high-capacity magazines to defend themselves. But an expert witness hired by the state found that an average of 2.2 shots were fired in self-defense situations. Between 2011 and May 2017, just two of the 736 incidents examined involved an individual firing more than 10 rounds in self-defense.
To Benitez, this data didn’t matter. “[P]ublic safety interests,” he wrote, “may not eviscerate the Second Amendment.” The judge was especially offended that Proposition 63 did not exempt “honorably discharged member[s] of the Armed Forces” to use high-capacity magazines. “What possibly better citizen candidates [are there],” he asked, “to protect the public against violent gun-toting criminals?” This argument is and was spurious—good guys with guns don’t have the best track record against bad guys with guns. Further demonstrating the absurdity of Benitez’s argument is the fact that Ian David Long, the Thousand Oaks shooter, was a Marine veteran.
To be clear, Benitez cannot and should not be blamed for Wednesday’s shooting. We do not yet know how Long obtained the high-capacity magazine he used in the shooting, but sale of these magazines is already prohibited in California (though the ban is easy to work around). Proposition 63 explicitly targeted their possession, removing them not only from gun shops but also from the gun owners themselves. Until we learn more details, we cannot know whether the law might’ve stopped the Thousand Oaks shooting. And, to further state the obvious, the ultimate blame lies with Long.
Regardless, the shooting illustrates how illogical, how callous to human life our Second Amendment jurisprudence has become. If high-capacity magazines help virtually no one defend themselves, but increase the lethality of mass shootings, shouldn’t that justify their prohibition? Why is it that “only two” mass shootings involving these devices weren’t enough to support a ban? How many more shootings would it take? How many more dead bodies does California have to mourn before the courts allow the state to take serious action?
Several years ago, Supreme Court Justice Brett Kavanaugh offered an answer. In a 2011 dissent, then-Judge Kavanaugh wrote that the District of Columbia’s ban on assault weapons and high-capacity magazines infringed upon the Second Amendment. He shrugged off the fact that assault weapons are significantly more damaging to the human body, as their high-velocity ammunition causes catastrophic bleeding, shreds vital organs, and leaves exit wounds the size of an orange. To Kavanaugh, the devastation wrought by these weapons is simply the price we pay for liberty.
The Supreme Court’s decisions protecting handguns in the home do not compel such a result. But courts have manipulated that limited holding to cast constitutional doubt on a wide array of gun restrictions meant to protect us from mass slaughter. They refuse to consider the cost of their jurisprudence in terms of human lives. Matters of life and death are abstracted to the point that “only two” mass shootings make no constitutional difference. After the carnage unleashed at Thousand Oaks, is it really so unreasonable that Californians want to eradicate high-capacity magazines from their state? As Judge J. Harvie Wilkinson III wrote in a 2017 case upholding Maryland’s assault weapons ban: “Disenfranchising the American people on this life and death subject would be the gravest and most serious of steps. It is their community, not ours. It is their safety, not ours. It is their lives, not ours.”
But Wilkinson is not on the United States Supreme Court. Kavanaugh is. And his ruthless commitment to the untrammeled liberty of gun owners may now be ascendant.