Gun control supporters are howling. They’re gnashing teeth with rage knowing that their “failed experiment” and labyrinth of lies came crashing down. Their gun grab is revealed for what it is – unconstitutional.
U.S. District Court Judge Roger Benitez struck down California’s 30-year-old ban on Modern Sporting Rifles (MSRs) when he issued his ruling on Miller v. Bonta, a challenge against the state’s law banning so-called “assault rifles.” Judge Benitez cleanly took apart the law by asking simple questions. Does the law violate the Constitution? Does the law adhere to judicial precedent? Are AR-15s commonly owned?
Truck-sized Argument Holes
On the Constitutionality question he wrote, “The Second Amendment protects modern weapons… They are principally AR-15 type rifles, pistols, and shotguns. Plaintiffs and others refer to them as “modern sporting rifles” although they are clearly useful for more than just sport.”
On the question of judicial precedent, Judge Benitez examined it both under the landmark Heller decision, which held there is a pre-existing individual right to keep and bear arms in common use (that applies to the States) and the U.S. Court of Appeals for the Ninth Circuit’s “two-step levels-of-scrutiny test.”
“The overwhelming majority of citizens who own and keep the popular AR-15 rifle and its many variants do so for lawful purposes, including self-defense at home,” Judge Benitez wrote. “Under Heller, that is all that is needed. Using the easy to understand Heller test, it is obvious that the California assault weapon ban is unconstitutional. Under the Heller test, judicial review can end right here.”
Judge Benitez wrote that the Ninth Circuit’s two-step test, unlike Heller, is anything but simple. The first step is determining if the law is presumptively lawful or a historical regulation. California’s ban fails on both counts. The second step questions the scrutiny the prospective law would require and examines the burden it places on the Second Amendment. Since the Second Amendment clearly holds the right of self-defense in highest regard, and California’s ban criminalizes the ability to defend oneself in the home with an MSR, it fails the scrutiny test.
“When a severe restriction on the core right of self-defense amounts to a destruction of the Second Amendment right, it is unconstitutional under any level of scrutiny,” Judge Benitez wrote.
The final question of whether MSRs are commonly-owned was asked and answered effectively.
“As applied to [Assault Weapons Control Act], the Heller test asks: is a modern rifle commonly owned by law-abiding citizens for a lawful purpose? For the AR-15 type rifle the answer is ‘yes.’”
Judge Benitez noted that as of 2018, there were nearly 20 million MSRs in circulation. “There are probably more modern rifles in circulation than there are Ford F-150 pickup trucks,” he wrote. “In 2018, 909,330 Ford F-150s were sold. Twice as many modern rifles were sold the same year. Imagine, every time one passes a new Ford pickup truck, it is a reminder that two new modern rifles have been purchased. That is a lot of modern rifles owned by Americans.”
Lamentations of the Left
This has gun control baying at the moon.
Igor Volsky, executive director of Guns Down America and vice president at the far-left think tank Center for American Progress, let loose with a rapid-fire tweet storm. He started out calling the ruling “infuriating,” claiming a 30-round magazine can be fired off in less than five seconds (maybe by Jerry Miculek), somehow attempts to argue that just two rounds are used in self-defense, which Judge Benitez discredited, and ends with demands from liberal lawmakers on how they’re going to write laws that survive Constitutional examination by the courts.
Short answer, Volsky, they won’t and shouldn’t.
Keith Olbermann, a sports commentator who went far-left on politics before getting drummed off even liberal networks, called Judge Benitez a “death-worshiping, fascist” on Twitter. Olbermann didn’t account for the specific references Judge Benitez made to the inherent right of self-defense, which is life preservation, by definition.
Stanford University law professor and gun control advocate John Donahue, whose gun control testimony was discredited by Judge Benitez, told The Mercury News, “This has been a long-term effort on the part of the gun lobby, but until they got the fifth (conservative) justice, I thought it was largely going to be ineffectual. But now, we are at great peril.”
He’s right on one count. NSSF has been pushing a long-term effort to get the courts to apply the law according to the Constitution.
Giffords Law Center to Prevent Gun Violence called Judge Benitez an “extreme outlier.” This is the same Giffords organization that still employs David Chipman, President Biden’s nominee to head the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Chipman wants to ban “assault weapons” but couldn’t define them when questioned at his recent confirmation hearing before the Senate Judiciary Committee.
California Vows Disarmament
Judge Benitez granted a stay in his decision to allow California’s Democratic Attorney General Rob Bonta to appeal to the Ninth Circuit. Democratic Gov. Gavin Newsom’s office called the decision a “slap in the face” and promised, “We’re not backing down from this fight, and we’ll continue pushing for common sense gun laws that will save lives.”
California has among the strictest of gun control laws and prefers their citizens to remain unarmed and helpless when their lives are threatened. Judge Benitez noted that distinction in his decision when he compared the California’s litigation stance to views professed by Oakland’s police chief that crime victims shouldn’t arm themselves, but be willing victims who can testify against their attackers.
“Of course, a dead victim is a lousy witness,” Judge Benitez noted.
Judge Benitez also outlined the importance of the courts defending the rights of the citizens against an overzealous government authority that would nullify rights in the name of public safety.
“In the end, the Bill of Rights is not a list of suggestions or guidelines for social balancing. The Bill of Rights prevents the tyranny of the majority from taking away the rights of a minority,” Judge Benitez wrote. “When a state nibbles on Constitutional rights, who protects the minorities? The federal courts. The Second Amendment protects any law-abiding citizen’s right to choose to be armed to defend himself, his family, and his home. At the same time, the Second Amendment protects a citizen’s right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants. The Second Amendment is about America’s freedom: the freedom to protect oneself, family, home, and homeland. California’s assault weapon ban disrespects that freedom.”
This is how Judge Benitez makes gun control howl.
Larry Keane is Senior Vice President of Government and Public Affairs and General Counsel for the National Shooting Sports Foundation, the firearms industry trade association.