U.S. District Judge Roger Benitez delivered another scathing rebuke to the state of California on Thursday, just weeks after declaring the state’s ban on “large capacity” magazines unconstitutional. This time around it was the state’s ban on “assault weapons” that was before the judge, in a case known as Miller v. Bonta. Benitez was unsparing in his criticism of the law, which he says bars ordinary Californians from possessing commonly-owned arms that are protected by the language of the Second Amendment.
Modern semiautomatic rifles like the AR-15 platform rifle are widely owned by law-abiding citizens across the nation. Other than their looks (the State calls them “features” or “accessories”) these prohibited rifles are virtually the same as other lawfully possessed rifles. They have the same minimum overall length, they use the same triggers, they have the same barrels, and they can fire the same ammunition, from the same magazines, at the same rate of fire, and at the same velocities, as other rifles. What is it, then, that animates the State’s criminalization of possessing certain rifles as “assault weapons”? It is that similar rifles have been used in some mass shootings and that by virtue of this law, the legislature hoped to keep these modern weapons out of the hands of mass shooters. The California legislature, at a time in the past when the lower courts did not recognize an individual’s right to keep firearms and in a state that has no constitutional analogue to the Second Amendment, balanced that interest above and against its law-abiding citizens who wanted these firearms for self-defense.
That was then. Today, the Supreme Court has very clearly ended modern interest balancing when it comes to the Second Amendment. The Second Amendment, the Court said, “is the very product of an interest balancing by the people and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.” It is “this balance—struck by the traditions of the American people—that demands our unqualified deference.”
The American tradition is rich and deep in protecting a citizen’s enduring right to keep and bear common arms like rifles, shotguns, and pistols. However, among the American tradition of firearm ownership, there is nothing like California’s prohibition on rifles, shotguns, and handguns based on their looks or attributes. Here, the “assault weapon” prohibition has no historical pedigree and it is extreme. Even today, neither Congress nor most states impose such prohibitions on modern semiautomatic arms. In contrast, laws that punish criminal acts committed with any gun, like the crime of assault with a deadly weapon, remain perfectly constitutional. Those criminal laws are not at issue here.
Benitez’s 79-page decision is far too long and so full of juicy goodness like this that it would be impossible for me to quote all of the highlights, so take the time and read it for yourself when you’ve got a half-hour or so.
Even though the Bruen test does not require (and in fact prohibits) interest-balancing, Judge Benitez engages in a bit of his own to rebut California’s argument that banning commonly owned firearms because they are sometimes used in high-profile and shocking assaults on groups of innocent people will have no impact on law-abiding citizens.
People have heard about the Robb Elementary School shooting in Uvalde, Texas. They have heard about Sandy Hook, Parkland, the Pulse nightclub, and other tragic mass shootings. But they do not hear of the AR-15 used in Florida by a pregnant wife and mother to defend her family from two armed, hooded, and masked home intruders. As soon as the armed intruders entered the back door of her home they pistol-whipped her husband — fracturing his eye socket and sinus cavity. Then they grabbed the 11-year old daughter. The pregnant wife and mother was able to retrieve the family AR-15 from a bedroom and fire, killing one of the attackers while the other fled.
It does not require much imagination to think what would have happened next if the woman had lived in California and could not possess such a firearm. People do not remember the disabled 61 year-old man living alone on a 20-acre property in Florida with dense woods and a long dirt driveway. After the homeowner had gone to bed, three men armed with a shotgun, pistol, and BB gun invaded. One wore a “Jason” hockey mask. The disabled victim said he was awakened by a loud noise and grabbed the AR-15 laying near his bed. He saw the masked man and a second man coming toward him inside his home. Gunfire was exchanged. By the time police arrived, one attacker had run away, one lay wounded outside, and one was dead on the dining room floor. Police found the disabled man in his bedroom alive, but bleeding from a gunshot wound to the stomach. The AR-15 lay across his legs. Without his modern rifle, the victim would have become an evidence tag and a forgotten statistic.
People do not hear about the AR-15 used by a young man in Oklahoma to defend himself from three masked and armed home invaders clothed in black. The three intruders broke through a rear glass door. Though outnumbered, the homeowner put up a successful defense with his AR-15.18 People do not hear about the AR-15 that was needed when seven armed and masked men burst through a front door at 4:00 a.m. firing a gun. Outnumbered seven to one, it took the resident 30 rounds from his AR-15 to stop the attackers.
California’s “assault weapon” ban takes away from its residents the choice of using an AR-15 type rifle for self-defense. Is it because modern rifles are used so frequently for crime? No. The United States Department of Justice reports that in the year 2021, in the entire country 447 people were killed with rifles (of all types). From this one can say that, based on a national population of 320 million people in the United States, rifles of any kind (including AR-15s) were used in homicides only 0.0000014% of the time. Put differently, if 447 rifles were used to commit 447 homicides and every rifle-related homicide involved an AR-15, it would mean that of the approximately 24,400,000 AR15s in the national stock, less than .00001832% were used in homicides. It begs the question: what were the other AR-15 type rifles used for? The only logical answer is that 24,399,553 (or 99.999985%) of AR-15s were used for lawful purposes.
The Second Amendment Foundation’s Alan Gottlieb said shortly after Benitez’s decision came down, “We’ve known all along the state ban could not hold up under constitutional scrutiny and we were encouraged by last year’s Supreme Court ruling in the Bruen case, which rejected the notion of ‘interest balancing’ when it comes to Second Amendment challenges. Judge Benitez came down on the side of the Constitution and history.”
He did indeed. So what happens next? Benitez granted a 10-day stay on his permanent injunction, so if the past is any prologue California Attorney General Rob Bonta will appeal the decision to the Ninth Circuit and request a stay, the Ninth Circuit will grant the stay and allow the law to remain in place during the appeal, and then a majority of Ninth Circuit judges will start to play keep-away-from-the-Supreme-Court with the case. Meanwhile, California Gov. Gavin Newsom will bizarrely bloviate about the “rights regression” in Benitez’s decision, even though it’s California’s rights suppression that’s the issue. And sooner or later the Supreme Court will get ahold of this case, though not nearly as quickly as we’d like. The “assault weapons” case that should get to SCOTUS first is Bianchi v. Brown, which has been pending in the Fourth Circuit Court of Appeals for almost a year now. Even if Bianchi gets there first, Judge Benitez’s opinion is going to be extensively cited by the plaintiffs challenging Maryland’s “assault weapons ban,” and he’s given them plenty of legal ammunition to use before the Supreme Court when the time comes.