Earlier this month, Judge Roger Benitez of the U.S. District Court for the Southern District of California issued his decision in Miller v. Bonta, overturning California’s “assault weapon” ban. The reaction to that decision was, as expected, terrible. Having read the 94-page decision in its entirety (go straight to Page 79 for a total evisceration of the CA AWB), I found the spin and lies coming from the anti-Bill of Rights side very revealing. I also found the rank demagoguery from politicians shocking as it sunk well below my low expectations.
The hysterical reactions fall under the following broad categories:
- complaining about the “tyranny” of an unelected judge overturning a democratically-enacted law
- asserting that the time lapsed since California’s “assault weapon” ban is too long and thus somehow perpetually binding
- insisting that the timing of the decision was insulting because it was issued on a nouveau “Gun Violence Awareness Day”
- willfully distorting the judge’s versatility analogy comparing AR-pattern rifles to Swiss Army knives
- smearing Judge Benitez’s character and claiming that he’s a “gun nut” and ergo unqualified to make his ruling.
Here is a small sampler of the parade of terribles.
Mark Frassetto, deputy director, Second Amendment History and Scholarship at gun control group Everytown Law, said, “One unelected judge shouldn’t get to set all gun policy for a state of 30 million people.” (Archive Link).
Rob Bonta, California Attorney General, called the well-written decision “fundamentally flawed,” and said, “There is no sound basis in law, fact, or common sense for equating assault rifles with swiss army knives — especially on Gun Violence Awareness Day…”
Fred Guttenberg, Gun Control Activist and father of slain Parkland student Jaime Guttenberg, bemoaned the use of factual descriptors, claiming that the judge “used gun lobby language” in accurately characterizing so-called assault weapons as fairly ordinary, popular, modern rifles.
Ted Deutch, congressman (D-FL), said, “A federal judge overturned California’s ban on assault weapons and outrageously compared the AR-15 to a Swiss Army knife. Such a comparison is an insult to Parkland and every family and community ripped apart by the AR-15. Weapons of war should be banned from our streets.”
Gavin Newsom, California Governor, was the most vicious of the lot. He said, “Overturning CA’s assault weapon ban and comparing an AR-15 to a SWISS ARMY KNIFE [sic] is a disgusting slap in the face to those who have lost loved ones to gun violence.” He claimed that this decision “is a direct threat to public safety and innocent Californians,” even though Judge Benitez’s decision goes into painstaking detail on the types of weapons – both “assault” and otherwise – used in crimes and in self-defense.
Newsom also appealed to filial authority and a magical spermatozoic transmission of constitutional knowledge saying, “As the son of a judge, I grew up with deep respect for the judicial process and the importance of a judge’s ability to make impartial fact-based rulings.” He then falsely claimed that the AR-15 is a “weapon of war that’s used on the battlefield,” a point explicitly addressed in the decision (on Page 80), in which the AR-15 is described as “‘virtually indistinguishable’ from the M-16 machine gun, but only in appearance.” With shocking viciousness, Newsom called Judge Benitez a “stone-cold ideologue,” a “wholly owned subsidiary of the gun lobby of the National Rifle Association,” and called his judicial decisions “press releases on behalf of the gun lobby.”
Keith Olbermann, Enfant Terrible, said, “That’s Judge Roger Benitez, a death-worshiping fascist who has never noticed that the word “own” – or anything like it – is absent from the 2nd Amendment. We can no longer tolerate gun nuts in the judiciary”
Kris Brown, President of the gun control group Brady, attacked Judge Benitez as “extreme” and “out of step with longstanding jurisprudence and historical precedent.” In an utterly shocking choice of language, Brown used the words “comfort and aid” that are normally used in the context of treasonous support to the country’s enemies, to describe Judge Benitez’s judicial work, saying, “Judge Benitez has shown the risk of danger to our nation’s public-safety laws, as fringe groups purporting an incorrect interpretation of gun rights have found comfort and aid from federal judges.” She paraded the longevity canard again, saying, “California’s ban is over 30 years old. Despite this, Judge Benitez has taken it upon himself to invalidate it and threaten the safety of all Californians.” Kris Brown also dehumanized Judge Benitez, saying, “Nobody, ever, who is a thinking human being with a heartbeat, could possibly liken a Swiss Army knife to an AR-15.”
Ruth Marcus, Washington Post columnist, smeared Judge Benitez by association with the unpopular president who nominated him, “But Roger Benitez, a George W. Bush appointee in San Diego, has earned himself an exception to this rule with an opinion striking down California’s three-decade-old assault weapons ban as a violation of the Second Amendment.” She parroted character attacks that were refuted during Judge Benitez’s confirmation process, and proceeded to use the word “fetishize” to describe judicial support against legislative attacks on the Second Amendment.
The Washington Post Editorial Board, falsely stated that “assault weapons” are more dangerous than other firearms; this specific fabrication was clearly refuted (video duration: 1 min, 23 secs) as part of the case. The Board was also gleefully approving of how other courts rubber-stamped these infringements on our freedom.
Shannon Watts, Gun Control Activist, falsely claimed, “Judge Benitez’s ruling marks the first time a federal court has found an assault weapons ban unconstitutional.” (This had already happened at the Fourth Circuit in Kolbe v. Hogan.)
Joyce Carol Oates, tweeted, “why do single judges have so much power? we are discovering every day that our democracy is riddled with qualifications that make “the will of the people” a mockery & the rule of a minority over the majority a constant threat.”
Gabby Giffords’ gun control organization, made several statements assailing the judge. Although Judge Benitez was appointed by President George W. Bush, they insinuated that he was a Trump appointee and abused the word “packing” to describe President Trump’s regular judicial appointments, tweeting, “This is just the latest example of the gun lobby’s concerted attempt to exploit a Trump-packed federal court system in order to undermine even the most commonsense gun safety laws.” They described a mere three decade-old law as “long-standing constitutional precedent,” assailed Judge Benitez as an “extremist judge,” and claimed, without evidence that “Judge Benitez’s ruling shows complete disregard for public safety.” In fact, the decision factored in the public safety aspect of lawful self-defense which the legislature ignored in passing the law, focusing solely on criminal misuse instead.
George Skelton, writer at the L.A. Times, suggested removing lifetime tenure from all federal judges because he didn’t get his desired outcome and called Judge Benitez “the gun lobby’s best friend in recent years” and “a garden-variety conspiracy theorist.” Arguing against the judge’s note that the Bill of Rights checks majoritarianism, Skelton wrote, “Sure, but in a democracy, there’s also something called majority rule.” (More on that later.)
Buffy Wicks, California Assemblywoman, said, “The judge’s decision is a radical, dangerous view of CA gun laws—filled w/misinformation.” Buffy the Truth Slayer is the one spreading misinformation; read Judge Benitez’s decision yourself. She also said she “won’t stop until there’s not a *single* gun death in CA.” What can that possibly entail besides a 100% ban and confiscation of every single gun out there?
London Breed, Mayor of San Francisco, said, “We’ve had a law on the books in the state for over 30 years, and a judge decides that our law is no longer constitutional.” She claimed, without evidence, “that law has saved countless numbers of lives.”
As we look at the above reactions, it helps to recall what happened more than a decade ago in California with same-sex marriage. In 2008, a majority of Californians voted to amend their state constitution and define marriage as exclusively between a man and a woman. This was raw democracy in action: 52.24% of voters supported this ballot initiative and outvoted the 47.76% of voters who opposed it. This was done to stop the franchise of freedom from spreading to same-sex couples.
California’s constitutional amendment ended up in federal court and was overturned in Hollingsworth v Perry by Judge Vaughn Walker of the U.S. District Court for the Northern District of California.
Here is how some of the aforementioned characters reacted to Judge Walker’s Prop 8 decision:
Gavin Newsom tweeted, “The federal court has struck down Prop 8! A major victory for equal rights & for thousands of committed couples, families & friends in CA.”
Keith Olbermann tweeted, ““ShowPlug5: & we close tonight with a special reprise of my Special Comment of 11/10/08: Prop-8: A Question Of Love.”
George Skelton, the writer who wrote this month that, “Sure, but in a democracy, there’s also something called majority rule,” wrote this instead in the aftermath of the Prop 8 decision: “Voters and legislatures sometimes pass laws that are unconstitutional. Courts were created, in part, to weed out those flawed acts. […] This isn’t the same as courts thwarting the people’s will. Many Prop. 8 supporters whine annoyingly that when a court throws out a measure passed by the voters, it is an affront to democracy. Nonsense. It’s central to democracy. […] But whether a law is unconstitutional is a court’s job to decide.”
On the same topic, but at other points in time, here are more reactions from those who condemned Judge Benitez:
Buffy Wicks, tweeted in 2015 after the Obergefell v. Hodges decision, “Republican candidates are utterly out of touch/disconnected w/American public on same sex marriage. It’s so striking. #PartyOfThePast”
London Breed, similarly tweeted in 2015, ““#LoveWins #MarriageEquaility #proudtobeAmerican”
Joyce Carol Oates tweeted, “God must allow same-sex marriage since God allowed Supreme Court to rule in favor. Isn’t this logical? Or is God not held to logic?”
The Washington Post Editorial Board in 2013 published an article titled, “Supreme Court must strike down Proposition 8 and DOMA.”
The reaction to Judge Vaughn Walker’s decision from Prop 8 supporters was similar to what we have seen in the past couple of weeks from the anti-Bill of Rights crowd. Judge Walker’s decision was described as judicial tyranny that overrode the will of the majority. The history of the institution of marriage also came into play, with the side supporting Prop 8 using the millennia-long understanding of marriage as a heterosexual institution as a reason to not expand it to include homosexual couples. Judge Walker’s character was also assailed; being a gay man, he was attacked as unqualified to preside over the case.
Given the similarity of attacks on the judges then and now for having the temerity to stand up to a democratic majority and do the right thing, I am grateful for both men. Democracy removes the power of a singular despot, but comes with the real risk of a majority run amok. The Founders of this great country had that in mind when they devised numerous checks and balances, fracturing and diffusing power to make sure that individual rights are protected. Judges Vaughn Walker and Roger Benitez are both exemplars of this founding idea, and I hope that Californians appreciate their service and remind their politicians that their attacks on these men are vile, pathetic, and hypocritical to say the least.
Ranjit Singh is an Indian immigrant and a proud naturalized citizen of the United States. He is a co-author of “Each One, Teach One: Preserving and protecting the Second Amendment in the 21st century and beyond.” You can follow him on Twitter @AuthorSingh.)