On Friday, Judge Roger T. Benitez issued a 94-page opinion striking down California's more than 30 year ban on "assault weapons." The ruling comes as little surprise, with Benitez proving himself over the past several years as a jurist who takes the Second Amendment and the Supreme Court's Heller decision seriously having struck down California's ban on magazines holding more than 10 rounds and the state's new ammunition background check law (both are currently being considered on appeal by the Ninth Circuit).'
Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.
Benitez stayed his ruling for 30 days to give California Attorney General Rob Bonta an opportunity to appeal, which he has vowed to do.
The ruling was promptly assailed by gun control advocates.
Robyn Thomas, Giffords Law Center Executive Director:
“Today’s decision is alarming and wrongly decided. A judge with extremist views prioritized weapons of war over the lives of Californians. This is especially insulting coming on Gun Violence Awareness Day. Too many families across the nation have lost loved ones in shootings carried out with assault weapons. They can attest to the reality that these weapons are not like ‘swiss army knives’ nor are mass shootings only a ‘very small’ problem."
Stanford Law School Professor John Donohue contributed to the doomsaying, telling the San Jose Mercury News that the end is nigh.
“It’s very, very alarming to me,” said John Donohue, a professor at Stanford Law School and gun violence expert, in an interview Saturday. “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.”
Benitez's Decision
While the Ninth Circuit has been predictably hostile to the Second Amendment, Benitez's lengthy, well-reasoned decisions have forced them into mental contortions and dishonesty to overrule them. Those transparent tactics are ripe now for Supreme Court review with the addition of Justice Amy Coney Barrett as what is perceived as a solid fifth vote for gun rights.
In his 94-page opinion, Benitez adopts many of the arguments gun rights advocates have made against bans on so-called "assault weapons." During the course of the trial and in the tens of thousands of pages of data and testimony provided, Benitez ably makes the case that California's 32-year ban on modern rifles has been ineffectual in preventing mass murder while at the same time depriving law abiding people of an effective, easy-to-use weapon for self defense.
The mechanical design features that identify a rifle as a California “assault weapon,” it is argued, tend to help a person shoot the rifle more accurately under pressure. The Plaintiffs make the point that this is a better condition for all lawful uses, i.e., a more accurate gun is better for everyone. After all, responsible gun-owners worry about the ending point of every round fired. If shooting in self-defense, a home defender wants every round to hit only attackers.
In contrast, the Attorney General argues that better accuracy makes it a more dangerous weapon. According to the Attorney General, “assault weapons enable a shooter to fire more rounds rapidly in a given period with greater accuracy, increasing the likelihood that more individuals will be shot and suffer more numerous injuries.” The implied context is a mass shooting. In the terrible mass shooting context, which fortunately is a rare event, reducing the number of innocent victims is the State’s goal, although it is not at all clear that a less accurate rifle would reduce the number of victims. A less accurate rifle in the hands of a mass shooter may very well result in different victims, but not necessarily less victims. On the other hand, in the self-defense context, which seems to be more common, taking accurate shots at attackers is vitally important for the innocent victim. While the state ought to protect its residents against victimization by a mass shooter, it ought also to protect its residents against victimization by home-invading criminals. But little is found in the Attorney General’s court filings reflecting a goal of preventing violence perpetrated against law-abiding citizens in their homes. Instead, the State’s litigation stance is more like the view recently expressed by a police chief in Oakland, California: we do not want victims to arm themselves; we want them to be good witnesses. Of course, a dead victim is a lousy witness.
This was an argument made by the California attorney general's office at trial that should've had people scratching their heads—and would have had the press chosen to highlight it, or had a basic understanding of firearms. The features that make a firearm an "assault weapon" in California make it lighter, easier to use and more accurate—all desirable features for any firearm used for self-defense.
Another point that Benitez makes is that so-called "assault weapons" are really nothing more than the most modern versions of semi-automatic rifles that have been ubiquitous for more than a century.
The Second Amendment protects modern weapons. Caetano v. Massachusetts, 577 U.S. 411, 412 (2016). The firearms banned by California Penal Code § 30515 and deemed “assault weapons” are 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. They are modern rifles that do not look like the iconic rifles from years gone by. They are fabricated with synthetic polymers and anodized aluminum in cerakoted colors of black and brown and green. Parts once made of solid wood on guns of the past are gone. These modern rifles are constructed of lightweight alloys and titanium nitride barrels in angular skeletonized shapes. To those who grew up watching movie “westerns” with John Wayne, or Chuck Connors (“The Rifleman”) on television, modern rifles just do not look like rifles.
And this is the key point Second Amendment advocates have been making since politicians first started with "assault weapons" bans—they are cosmetic bans. Functionally, they are no different than the M! Garand or M1 Carbine used by American forces in World War II. Banning "assault weapons" is not synonymous with banning semi-automatic rifles, though that will undoubtedly be the next step.
For example, here is a banned Ruger Mini-14 "assault weapon":
Here is a California-legal Mini-14 Ranch Rifle:
The two guns are both semi-automatic. They both accept a detachable magazine. They both fire the same cartridge. A doctor examining a wound created by a bullet fired from one of these rifles would be unable to determine from which gun it was fired. The barrel on the top rifle is about 2 inches shorter than the one below it. In theory, that means it's more assaulty because it's easier to conceal, but it also means that bullets fired from it will do less damage because they will exit the barrel at a lower velocity.
The main difference? One looks scary, the other, not so much.
The Best Evidence
In his decision, Judge Benitez makes another point not often made amid all of the debates over the efficacy of various gun control laws: too often, we're not using the best evidence.
News reports are normally considered inadmissible hearsay, but both sides offered into evidence news articles and magazine pieces and expert testimony relying on newspaper articles about gun-related events. News reports to which the parties made no objection are admitted into evidence. But it begs the question, “Where are the actual police reports or criminal court records?” Why are the only collections of offensive or defensive gun use maintained by biased organizations? How reliably can a news reporter after the fact, identify a firearm as an “assault weapon,” or determine the size of an ammunition magazine, or count the number of rounds fired? One would expect a police report to accurately record these kinds of raw facts.
While the Plaintiffs may have difficulty obtaining copies of actual police reports, surely the Attorney General has easy access. But the Attorney General has not offered a single California police report. There were 161 mass shootings in the last 40 years but there is no testimony from any percipient witness. There were instances of defensive gun use but no testimony from any defensive gun user. The Attorney General argues that a citizen defending himself really needs, on average, only 2.2 shots. But there is no testimony from any home defender. No victim was called to testify about how many shots he or she would have wanted to have ready to fire during their actual home invasion.
Why we continue to rely on news reports for these sorts of policy debates when the government has access to documents that are far more informative and more likely to be accurate than a news report is a mystery. That the state continues to rely on research based upon media reports rather than police reports that it undoubtedly has access to speaks either to a level of disinterest in the facts, or a fear that accurate data wouldn't tend to support the policy prescriptions preferred by Democrats in the statehouse.
And the "research" that the Attorney General's office pays for in connection to litigation involving these laws is a waste of money. On the "evidence" introduced at trial that people on average fire only 2.2 shots from a firearm in a self-defense situation:
The 2.2 shots notion comes from the State’s expert, Lucy Allen. Allen is an expert in economics and statistics. Unlike Koper, who is an academician undertaking peer-reviewed studies for the advancement of understanding, Allen was hired specifically to conduct research for the State’s litigation. Her study is not peer-reviewed. Her study cannot be tested because she has not disclosed her data. Her study cannot be replicated. In fact, the formula used to select 200 news stories for her study is incomprehensible. Worse, the entire concept is suspect because it attempts to study an average defensive gun use based not on police reports but on events reported in the news media and often lacking in detail, all while acknowledging that many events are never reported. Allen did ask the State for police reports, but she did not receive them. Allen testified that the first thing she did was ask whether there were police records available
Benitez's discussion of Allen's "research" begins on page 49 of his decision, and it's embarrassing—or should be.
Going forward
The Ninth Circuit will definitely hear California's appeal. If Benitez's decision is upheld by a three judge panel, then it will undoubtedly be heard (and likely overturned) by a full, en banc, panel.
Then it will be onto the Supreme Court. The court's decision this year to hear NYSRPA v. Corlett may bode well the possibility that the court will finally rein in the circuit courts that have willfully ignored, or created alternative standards, than the one outlined in Heller: "history, text, tradition."
