I’ve seen so many columns from the Washington Post on Judge Roger Benitez’s decision striking down California’s ban on so-called assault weapons that I’m starting to think the paper has plans to relocate to the West Coast. I can’t remember the last time the paper devoted so much attention to a case that’s still up for appeal, but the Post just can’t stop complaining about the decision itself, the judge, and of course the horrible “gun lobby” that dared to bring suit against the state of California in the first place.
The Post’s latest entry in it’s anti-gun canon comes from the editorial board, and in a not-so-shocking twist, the editors are just as enraged by Benitez’s decision as the paper’s columnists.
U.S. District Judge Roger Benitez of the Southern District of California on Friday termed the state’s ban on assault weapons, implemented in 1989 and revised over the years, “a failed experiment” and ruled it unconstitutional. “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,” began the 94-page ruling that dripped with disdain for California’s efforts to confront gun violence and showed no concern for its victims. “No amount of ‘common sense’ gun control laws will prevent criminals from misusing guns,” he wrote, comparing California’s efforts to Victor Hugo’s Inspector Javert relentlessly searching for Jean Valjean. Also disturbing was his argument that assault weapons are protected by the Second Amendment because they could be useful in a citizens militia, citing his birth country of Cuba and the revolution there. Just the suggestion the country needs after the Jan. 6 insurrection at the U.S. Capitol.
I can’t quote the entire op-ed here, so I’d encourage you to visit the Post and read it for yourself, because for all of the sound and fury from the Post’s editors, there’s not much of a substantive argument rebutting Benitez. The closest the Post’s editors ever get is their assertion that because other appellate courts around the country have upheld “assault weapons” bans in places like Maryland, New York, and even California, that Benitez must have wrongly decided the case of Miller v. Bonta.
The Post’s editors veer off from opinion into outright falsehood, however, with one of their claims.
Assault weapons, more dangerous than other firearms, are disproportionately used in crimes and against law enforcement. They — not Swiss Army knives — are the weapon of choice of mass shooters because of their efficiency in killing as many people as possible in the shortest amount of time.
Benitez actually addressed this argument in his opinion, and swiftly shot down (pun absolutely intended) the argument that so-called assault weapons are disproportionately used in crimes, including mass shootings.
Federal Bureau of Investigation murder statistics do not track assault rifles, but they do show that killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle.
For example, according to F.B.I. statistics for 2019, California saw 252 people murdered with a knife, while 34 people were killed with some type of rifle – not necessarily an AR-15.2 A Californian is three times more likely to be murdered by an attacker’s bare hands, fists, or feet, than by his rifle. In 2018, the statistics were even more lopsided as California saw only 24 murders by some type of rifle. The same pattern can be observed across the nation.
Benitez gets into an even deeper refutation of that argument beginning on page 43 of his 94-page opinion, noting that the state of California hasn’t provided any real evidence that so-called assault weapons are disproportionately used in crimes, but that even if that were the case, it wouldn’t have an impact on the constitutionality of the state’s ban.
The Court struck down bans on handguns in the District of Columbia and Chicago at a time when handguns were disproportionately used in crime. Heller, 554 U.S., at 697-98 (Breyer, J., dissenting) (“From 1993 to 1997, 81% of firearm-homicide victims were killed by handgun . . . . Handguns also appear to be a very popular weapon among criminals. In a 1997 survey of inmates . . . 83.2% of state inmates and 86.7% of federal inmates said that they were armed with a handgun.”). By comparison, modern rifles are not used in crime nearly as often as handguns.
If use by criminals could justify a weapon’s ban, it would amount to something like a disfavored “heckler’s veto.” We might call it the “criminal’s veto.” See e.g., Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286, 1292-93 (9th Cir. 2015) (explaining “heckler’s veto” doctrine) (“If speech provokes wrongful acts on the part of hecklers, the government must deal with those wrongful acts directly; it may not avoid doing so by suppressing the speech.”).
Just as a heckler’s veto wrongly punishes persons who speak their ideas, California’s ban punishes persons who choose modern rifles for home defense. In other words, if modern rifles are misused in crime (even disproportionately), government must deal with those wrongful acts directly; it may not deal with the problem by suppressing the rights of law-abiding citizens to have modern rifles for lawful uses. Thus, disproportionality is not a valid constitutional concern. Common ownership by law abiding citizens for lawful purposes is the test.
Just like the paper’s columnists, the Post’s editorial board has a big problem with Benitez’s decision; they just don’t have a good argument against it. Instead, their rebuttal boils down to “how dare he do this,” which may make most of their readers nod in approval but isn’t persuasive in the slightest to those who’ve taken the time to read Benitez’s entire opinion.