Liberals are probably having a meltdown after a George W. Bush-appointed federal judge in California ruled the state’s ban on assault weapons is unconstitutional.
U.S. District Judge Roger Benitez of San Diego released a 94-page ruling late Friday, indicating California’s three-decade ban on assault weapons violates the Second Amendment’s right to bear arms.
“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 the United States v Miller, 307 U.S. 174 (1939),” Benitez wrote.
“Yet, the State of California makes it a crime to have an AR15 type rifle,” Benitez continued. “Therefore, this Court declares the California statutes to be unconstitutional.”
On several pages of the ruling, the judge recommended the rifle should be protected under the Second Amendment for its “militia readiness.”
“Government is not free to impose its own new policy choices on American citizens where constitutional rights are concerned,” he added. “California may certainly conceive of a policy that a modern rifle is dangerous in the hands of a criminal, and that therefore it is good public policy to keep modern rifles out of the hands of every citizen. The Second Amendment stands as a shield from government imposition of that policy.”
The office of Attorney General Rob Bonta released a statement after the ruling said it would immediately appeal the decision.
“Today’s decision is fundamentally flawed, and we will be appealing it,” Bonta said in a statement Friday night. “There is no sound basis in law, fact, or common sense for equating assault rifles with swiss army knives.”
The Firearms Policy Coalition, which supported the suit, praised the judge’s decision.
“We look forward to continuing this challenge at the Ninth Circuit and, should it be necessary, the Supreme Court,” the group’s president, Brandon Combs, said in a statement.
The outcome angered Gov. Gavin Newsom. He released a statement that read:
“The fact that this judge compared the AR-15 — a weapon of war that’s used on the battlefield — to a Swiss Army Knife completely undermines the credibility of this decision and is a slap in the face to the families who’ve lost loved ones to this weapon,” he said.
Benitez left plenty of time, about 30 days, for the attorney general to appeal, but we did find some irony in the July 4th date that the decision will take effect.
Additionally, as Jonathan Turley noted, the decision could have some ramifications in the pending nomination of Chipman as Director of the ATF. Chipman is a former ATF special agent and senior policy adviser for the gun control organization Giffords. In his hearing, Chipman declared that “With respect to the AR-15, I support a ban as it has been presented in a Senate bill and supported by the president. The AR-15 is a gun I was issued on ATF’s SWAT team. It’s a particularly lethal weapon and regulating it as other particular lethal weapons I have advocated for.”
Chipman was confronted on the definition of what constitutes an assault weapon. He told the Senate that the ATF defines an assault rifle as “any semi-automatic rifle capable of accepting a detachable magazine above the caliber of .22, which would include a .223, which is, you know largely the AR-15 round.”
President Biden’s ATF nominee is eager to ban basically every single modern sporting rifle in America today. pic.twitter.com/iFrCUS6GYW
— Tom Cotton (@SenTomCotton) May 26, 2021
That would include a wide array of weapons. Indeed, a statement by Judge Benitez may resonate with some senators:
“This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned ‘assault weapons’ are not bazookas, howitzers, or machine guns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed “assault weapons” are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes.
One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this The characterization of a finding as one of ‘fact’ or ‘law’ is not controlling. To the extent that a finding is characterized as one of ‘law’ but is more properly characterized as one of ‘fact; (or vice versa), substance prevails over form. hyperbole, and facts matter. 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 fairness to Chipman, he made clear that he would enforce whatever the federal law prescribes in terms of any ban or the underlying definitions. However, he is viewed as an outspoken advocate for banning ownership of weapons like the AR-15, which was just declared as protected by this court.
These are difficult policies and difficult cases. Reasonable people can disagree, including on the meaning of the Second Amendment. What is troubling is the level of misleading and frankly disingenuous discussion of the issue. The public is constantly being told that electing certain politicians will result in sweeping gun control when the current case law directly contradict such assertions.
That was the case in the 2020 Democratic debates where candidates make unsupportable claims and promise. For example, now President Joe Biden attacked Senator Bernie Sanders over a vote that had favored the gun industry. Biden declared that, since the vote, 150 million Americans have been killed by guns. When people asked the campaign about roughly half of our population dying in gun violence, it said that number was probably more like 150,000.
Nevertheless, many of the candidates promised massive changes. Biden declared “I want to tell you, if I’m elected NRA, I’m coming for you, and, gun manufacturers, I’m going to take you on and I’m going to beat you.” Beto O’Rourke ran on the issue and most famously declared “Hell, yes, we’re going to take your AR-15, your AK-47.” Biden later declared that he would make O’Rourke a type of “gun czar” for his Administration.
Such “hell yes” moments are likely to continue with the approaching 2022 election, but they may meet more judges who say “hell no” in constitutional challenges.