Firefight

(Edited 6/8/2021)

The Opening Salvo

Judge Benitez’s Decision is available here

In a promising opening salvo, the Honorable Roger T. Benitez, a United States District Court judge in California ruled important segments of California’s “Assault Weapons” ban unconstitutional:

“California Penal Code §§ 30515(a)(1) through (8) (defining an “assault weapon” by prohibited features), 30800 (deeming certain “assault weapons” a public nuisance), 30915 (regulating “assault weapons” obtained by bequest or inheritance), 30925 (restricting importation of “assault weapons” by new residents), 30945 (restricting use of registered “assault weapons”), and 30950 (prohibiting possession of “assault weapons” by minors), and the penalty provisions §§ 30600, 30605 and 30800 as applied to “assault weapons” defined in Code §§ 30515(a)(1) through (8) are hereby declared unconstitutional and shall be enjoined.” (Case: 19-cv-1537-BEN [JLB])

In his 94-page decision, Judge Benitez drew from District of Columbia v. Heller, 554, U. S. 570 (2008), and United States v. Miller, 307 U. S. 174 (1939), as well as evidence, testimony, and other court decisions and precedents.

Ground and Critique

Judge Benitez grounded his decision in two points: The first being that “the Supreme Court clearly holds that the Second Amendment protects guns commonly owned by law-abiding citizens for lawful purposes,” and second, that the individual right to keep and bear arms has a “relationship to the preservation or efficiency of a well regulated militia.” The ubiquity of the AR-15 style firearm family, and its potential utility as a firearm for a civilian militia firmly place it under the protection of the Second Amendment.

Judge Benitez’s critique of the California statutes addressed the legislature’s grounding its justification in polemic language, feature enhanced utility, and cartridge lethality, none of which are constitutional considerations. He also criticized California for relying on hearsay, and anecdotal evidence for justification, as well as flawed, non-repeatable research, the object of which was solely to support the state’s claims.

Stay Tuned for the Final Episode. . . .

Editor’s Note (6/8/2021): In an interesting email, Open Source Defense (“OSD 120: Guns are Dangerous. That’s a Feature, Not a Bug,” https://opensourcedefense.substack.com) drew out implications from Judge Benitez’s decision I missed. Their central implication was that Benitez began his opinion with the presupposition AR-15s are weapons. Pre-Heller jurisprudence differentiated between sport and recreation use of firearms, and self-defense. Under the pre-Heller 1968 Gun Control Act, the executive branch was granted authority to define “sporting purposes,” thereby artificially differentiating firearms into toys and tools. “Toys” were permissible, “tools” were not. The OSD argument is that as weapons, firearms are neither inherently good, nor inherently bad. They observed there are 423 million guns in the U. S. About 14,500 are used to commit murder, annually, or, 0.03 percent of the total number of guns. While the 0.03 percent have been extensively studied, it may be time to study the uses of the other 99.997 percent as the OSD suggested. From the contrast of the number of guns owned to the number of guns used to commit murder, the argumentative weight seems to suggest firearms are merely tools, and that it is the user who determines whether his use of a weapon is for good or ill. The 99.997 percent of firearms NOT used to commit crime suggests the overwhelming majority of gun owners choose to use their weapons for good.

Editor’s Note (6/8/2021): OSD also noted that Judge Benitez invoked a 30-day stay on his decision, which will likely become permanent (meaning the ASW ban remains in place), unless the 9th Circuit Court of Appeals reverses his stay.

It is highly probable that Judge Benitez’s ruling will be appealed to the 9th Circuit Court of Appeals. Whatever the decision of the 9th Circuit, it is likely the case will be appealed to the Supreme Court for certiorari, and potential adjudication.

If Judge Benitez’s decision is appealed, the decision of the 9th Circuit will have a ripple affect throughout the country. If this case goes to the Supreme Court, the affect will be even greater.

Additional Thoughts

(Appended 6/8/2021) In view of OSD’s article, it may be that Judge Benitez was laying a foundation to shift Second Amendment jurisprudence from policy pronouncements (“sporting uses” v. “weapon”) to self defense considerations.