Duncan Finally!!!

We finally got a decision.



We have been waiting for months… well, really years… for Judge Roger T. Benitez to release his opinion in Duncan v Bonta.



You may remember this originally as Duncan v Becerra.



California has Penal Code § 32310(c) and (d) that was amended by Proposition 63 which essentially made the mere possession of a magazine capable of holding more than ten rounds a criminal offense.



Victoria Duncan, who legally owned standard capacity magazines, sued and moved for an injunction against enforcement of the law.  St. Benitez granted her wish, and in so doing, created what has been deemed “Freedom Week”.  A one-week period of time where the law had been held unconstitutional and the State had not filed an appeal.  During this time 1.5 million magazines (or more) made their way legally into the State of California… it was like the Berlin airlift… and it was glorious.



Judge Roger Benitez was nicknamed St. Benitez, the patron saint of ballistic volume.



Then a minor miracle happened:  the State lost on appeal.



A three-judge panel agreed with Benitez that the law was unconstitutional.



The State lost its mind and asked for an en banc review by ten judges who, damnit, were going to figure out one way or another to overturn Benitez.  They did and Victoria appealed to the Supreme Court of the United States.



Before the Supremes got to Duncan they ruled in NYSRPA v Bruen and created a new Constitutional test to apply to determine the Constitutional validity of a challenged statute.  They then immediately reversed the outlier en banc panel’s ruling and remanded the case back for “further considerations under Bruen”.



The case wound up back in St. Benitez’s courtroom.



I want to highlight one passage I think might be Benitez out-Benitezing his usual prose:



“The adoption of the Second Amendment was a freedom calculus decided long ago by our nation’s first citizens who cherished individual freedom with its risks more than subservient security of a British ruler or the smother safety of domestic lawmakers.  The freedom they fought for was worth fighting for then, and that freedom is entitled to be preserved still.”






So what did he ultimately decide?… Here is the rundown:



  1. He thoroughly (almost embarrassingly) roasted the State’s expert witness as being a hack.
  2. CPC § 32310 is unconstitutional (again), this time as subjected to a Bruen
  3. He placed a ten-day stay on his opinion to give the State an opportunity to appeal.



So… no… there is no “Freedom Week” 2.0… but the clock is ticking against the State, and they are well aware they have been getting hammered at the 9th.  This shall be interesting to watch indeed!



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Comments (3)

  • Mark Reply

    What happens after the 10 day stay expires? Or is the stay extended now that the state has appealed?

    09/27/2023 at 09:53
  • Pookie Reply

    Good morning Steven, during “freedom week” there where those of us that had compliant standard capacity magazines that where “pined and/or welded to hold 10 roun where the pins and/or welds where removed. I know someone that has buckets of sutch mags.

    09/27/2023 at 10:20
  • Norm Ellis Reply

    I am enjoying this. We need more Saint Benitez!!!

    10/01/2023 at 16:02

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