It seems that we continue to struggle with a chief executive who goes on social media to personally attack judges who have ruled against his laws or policies. No, it is not Donald Trump. This week, California Gov. Gavin Newsom (D) went on Twitter/X to denounce U.S. Judge Roger T. Benitez as “an extremist, right-wing zealot with no regard to [sic] human life.”
Four years ago, I wrote how Democrats were becoming more Trump-like in their attacks on judges and hyperbolic rhetoric. There is no better example than Gavin Newsom.
Many of us criticized Trump for his attacks on judges, including Judge Gonzalo Curiel over his hispanic heritage.
Trump would often savage judges for being Democrats or liberals when there were good-faith legal disagreements over his policies.
Newsom seems increasingly to be morphing into the man that he once denounced for such “toxic” rhetoric.
Benitez earned the ire of Newsom by ruling yesterday that California’s limit on high-capacity magazines violates the Second Amendment. He previously ruled against the ban in a partial stay in 2019.
There are good-faith arguments that these bans contradict Supreme Court cases on the scope and meaning of the Second Amendment. It is certainly an open question but gun-rights advocates are challenging these laws as without constitutional or historical foundation. In New York State Rifle &Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022), the Supreme Court held that
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, . . . the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’
As a lower court judge, Benitez is required to follow that precedent and, while some may see room for a contrary ruling, he wrote a lengthy opinion in Duncan v. Bonta (below) on why the California law fails under this precedent:
There is no American tradition of limiting ammunition capacity and the 10-round limit has no historical pedigree and it is arbitrary and capricious. It is extreme. Our federal government and most states impose no limits and in the states where limits are imposed, there is no consensus. Delaware landed on a 17-round magazine limit. Illinois and Vermont picked limits of 15 rounds for handguns and 10 rounds for a rifles. Colorado went with a 15-round limit for handguns and rifles, and a 28-inch tube limit for shotguns. New York tried its luck at a 7-round limit; that did not work out. New Jersey started with a 15-round limit and then reduced the limit to 10-rounds. The fact that there are so many different numerical limits demonstrates the arbitrary nature of magazine capacity limits.
Rather than attack the basis for the opinion, Newsom followed the common practice today in commentary and Congress in attacking those who hold opposing views. He posted on Twitter/X:
BREAKING: California’s high-capacity magazine ban was just STRUCK DOWN by Judge Benitez, an extremist, right-wing zealot with no regard to human life.
Wake up, America.
Our gun safety laws will continue to be thrown out by NRA-owned federal judges until we pass a Constitutional Amendment to protect our kids and end the gun violence epidemic in America.
So, rather than offer an opposing view on the historical foundations and constitutional justification for the law, Newsom called the judge a child-killing, extremist, right-wing zealot owned by the NRA.
That is not at all “toxic.”
Such trash talking is now the norm in American politics as members of Congress regularly attack journalists, whistleblowers, and others personally rather than address their underlying views. I have testified over 100 times in Congress over decades and I have never seen the degree of ad hominem attacks on witnesses by members. It is meant to not only appeal to the most extreme elements in our political system, but to chill other witnesses who may be considering testimony that a party opposes.
The attacks on judges by our political leaders are particularly chilling. I denounced it in Trump and it is no less “toxic” by Newsom. Yet, while the media universally condemned Trump in these attacks, reporters have been largely quiet or neutral in reporting the attacks by Newsom.
As for Newsom, he knows that, in the age of rage, the most rageful reigns supreme.
Here is the opinion: duncan-v-bonta-order
