By Harold Pease, Ph. D
“The Constitution is a shield from the tyranny of the majority,” so said U.S. District Federal Judge, Roger Benitez late last June when he blocked one of the most horrific laws yet to damage the 2nd Amendment of the Bill of Rights—even in California dominated by one political party and one political ideology. A California referendum, potentially making thousands, perhaps millions, felons, was to go into effect July 1, 2017.
In California gun magazine sales have been limited to ten rounds for the last 17 years but persons already in possession of magazines exceeding this number could keep them as grandfathered in. The state reneged on this last November when Prop 63 required owners to get rid of them or the state would seize them and punish owners with fines up to $100 per magazine or up to a year in jail. Gun owners were given options for disposal: turn them in to law enforcement for destruction, destroy them themselves, remove them from the state and/or sell them to licensed firearms dealers.
Fortunately, Judge Benitez blocked this measure doing so mostly on the basis of three arguments: the Second Amendment, just compensation, and “criminal law trapping.” On the last, he wrote that the new law made it harder “for people of common intelligence who desire to obey the law,” to comply. And, it gave “hundreds of thousands, if not millions, of otherwise law-abiding citizens an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property… That is a choice they should not have to make.” Moreover, he wrote, it “burdens the core of the Second Amendment by criminalizing the mere possession of these magazines that are commonly held by law-abiding citizens for defense of self, home, and state.” The Constitution, he said, “is a shield from the tyranny of the majority.” Sixty-three percent of Californians had voted for this.
We might emphasize the state cannot confiscate legally purchased property. This constitutes theft when not “for public use,” which thievery is amplified many times when taken without “just compensation,” as when the state mandates taking property “for public use,” as in building roads (Amendment V). This is the only part of the Constitution that permits property confiscation but it houses two qualifiers, it must be “for public use” and it requires “just compensation” to the property owner. Neither condition is met in the case of magazine confiscation.
This referendum on magazines, which, like ammunition, makes the gun operable, has resulted despite the clear language in the Constitution prohibiting government infringement on a citizen’s right to bear arms. The anti-self defense crowd despise the following language found therein, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
There exists no sentence in the Bill of Rights, an amendment required by the people/states conditional upon their ratification of the Constitution, which was more understood at the time. A militia then was the people and an armed populace was understood to be necessary for a free country in two ways: an armed populace could assist the military against foreign invasion, and/or would be in place should the biggest enemy to liberty be one’s own government.
Certainly, when enacted, there was no thought of restricting the type of firearm, amount of ammunition, or where, or who could carry. So its placement as the second most valued freedom in the Bill of Rights had nothing to do with personal safety, or hunting, these were already assumed. Founding documents show it specifically placed right after freedom of religion, speech, press and assembly to make certain that these freedoms were never taken from us. It was aimed (no pun intended) squarely at the government should it become tyrannical as before under the British. But certainly we need have no fear of the government today? Given California’s new gun laws, perhaps we should.
Imagine how restricting magazines, ammunition and etc., that California has imposed on its people, might emasculate citizens in their ability to assist the military against a foreign invasion (as in the case of citizens stopping the British invasion in the Battle of Saratoga) and/or to oppose our own government (the king and parliament at one time) should it become tyrannical as in the American Revolution. Our Founders did not deny future generations the same means of resisting tyranny that they themselves used.
California’s Prop 63 violates the Second Amendment, which placed bearing arms off-limits to government and used the strongest language possible, “shall not be infringed,” in doing so. Any referendum or legislation, state or federal, cannot constitutionally undermine or destroy an amendment to the Constitution.
So U.S. District Federal Judge, Roger Benitez stopped the latest California assault on 2nd Amendment, for now. Unfortunately the radicalized, infamous 9th Circuit will likely reverse his decision. If the Supreme Court chooses not to take the case its judgment will stand. If they do, Trump’s Supreme Court Appointee Neil Gorsuch, will likely provide the vote to save us from the new idea that confiscation of lawfully purchased items, can be constitutionally used to further damage the 2nd Amendment, but this time for the whole nation, not just California. Thank our Founders that their document shielded us from the tyranny of the majority.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.