The Constitution’s very specific list of inviolable human rights sets the United States apart from almost every other nation on Earth.
Periodically, therefore, federal judges must remind them that Californians are also American citizens who must have their constitutional rights, even unpopular or politically incorrect ones, respected.
It happened twice last year.
First, the U.S. Supreme Court overturned a California law requiring clinics offering non-abortion alternative services to pregnant women to post notices telling them about the availability of abortions.
“By compelling petitioners to speak a particular message, it alters the content of (their) speech” and thus violates a previously enunciated judicial principle, the majority opinion declared.
Just days later, the Supreme Court did it again, ruling 5-4 that laws in California and other states requiring non-members to pay union dues, a practice known as “agency shop,” violate “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
Violating the Constitution’s Right to ‘Keep and Bear Arms’
Last week, federal Judge Roger Benitez invalidated a California law (Penal Code Section 32310) that makes it illegal to sell or even possess firearms magazines holding more than 10 rounds, the latter provision added by a 2016 ballot measure sponsored by Gov. Gavin Newsom when he was lieutenant governor. The law, Benitez declared, violates the Constitution’s right to “keep and bear arms.”
“California’s law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny,” Benitez wrote in his 86-page decision.
“Where are the actual police investigation reports?” he asked. “The attorney general, California’s top law enforcement officer, has not submitted a single official police report of a shooting. Instead, the attorney general relies on news articles and interest group surveys. Federal constitutional rights are being subjected to litigation by inference about whether a pistol or a rifle in a news story might have had an ammunition magazine that held more than 10 rounds.”
Becerra Somewhat Tone Deaf on Constitutional Rights
Becerra will probably try to overturn Benitez’s ruling on appeal, and the case may eventually wind up in the U.S. Supreme Court, but Benitez repeatedly cited the court’s previous gun rights rulings as a basis for his decision, implying that the state has little chance of succeeding.
They should, but Becerra himself ventured very close recently to violating the right to a free press by demanding that UC-Berkeley’s Investigative Reporting Program return or destroy records of police misconduct that it obtained via a Public Records Act request.
Becerra warned that “unauthorized receipt or possession” of the data is a misdemeanor, and added, “If you do not intend to comply with our request, the department can take legal action.”
That smacks of the “prior restraint” case that the New York Times won in 1971 regarding publication of a secret military history of the Vietnam War known as the “Pentagon Papers.”
Becerra should know better than to threaten journalists, but then as the firearms ammunition case showed, he’s somewhat tone deaf on constitutional rights.
CALmatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary.