Terry H. Schwadron

June 8, 2021

Surely, the gasp-inducing decision by a single federal judge to overturn California’s long-time ban on assault weapons, a ruling that likened the AR-15 to a Swiss Army knife, will be appealed. But the decision cannot be enforced while waiting for an appeal.

Despite a law on the booked in California since 1898, according to the ruling by US District Judge Roger Benitez of San Diego, the assault weapons ban violates the Second Amendment’s right to bear arms and deprives Californians from owning assault-style weapons commonly allowed in other states.

Here was the key thought: “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment,” Benitez wrote. “Firearms deemed as ‘assault weapons’ are fairly ordinary, popular, modern rifles.” And he blamed the news media, not say, an epidemic of mass shootings across the nation, for persuading us “that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter.”

His facts were based on 2019 FBI data that say the handgun was the most commonly used weapon in murders and accounted for 6,368 victims, with knives next, rifles and other firearms following. His facts did not include that AR-15 style rifles have been the weapon of choice for the most violent mass killings in a movie theater in Aurora, Colorado; the Tree of Life synagogue in Pittsburgh; the Route 91 Harvest musical festival in Las Vegas; a massacre at a church in Texas; the Pulse nightclub in Orlando; a high school in Parkland, Florida; and the Sandy Hook Elementary School in Connecticut.

More people die of heart attacks than do of lung disease; shall we eliminate tobacco regulation?

It is hard to overstate how a single ruling by a single judge could be more off the mark. I’m not a judge, but it seems clear that his argument is wrong on Constitutional grounds, on historical grounds and on public safety grounds. He has an apparent personal, if judicial bias: Judge Benitez has previously ruled that California’s ban on high-capacity magazines was unconstitutional and struck down state limits on remote purchases of gun ammunition, cases pending appeal.

The Constitutional Argument

In a Los Angeles Times essay, Erwin Chemerinsky, dean of the UC Berkeley School of Law, called the Swiss Army knife comparison “ludicrous” and suggested thatThis is the most extreme gun rights ruling yet from a federal court. Every other court in the country has upheld bans on assault weapons. This ruling is wrong as a matter of constitutional law and of common sense.”

Nevertheless, he notes that with a shift in U.S. Supreme Court justices to a gun-supportive majority, any appeal here could lead to narrowed interpretations of what weapons can be limited.

As we know, the Second Amendment supporting “militias” has been twisted over the last 25 years to be a banner for individual gun ownership rights. But even in the 2008 case that widened gun rights in homes — the 5–4 decision in District of Columbia vs. Heller — it was Justice Antonin Scalia who wrote that this right is not absolute and the government can regulate who has guns, where they have them and what type of weapons are allowed.

Scalia said the right to possess arms was limited to weapons that “were in common use at the time” the 2nd Amendment was ratified. He said this “limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” As Chermerinsky notes, no one can argue that AR-15 style weapons existed, let alone were in common use, in 1791. Nor can it be denied that they are very dangerous weapons.

Judge Benitez argued that the 2nd Amendment protects a “muscular” constitutional right and the California ban is “about average guns used in average ways for average purposes.” He added, “In California, murder by knife occurs seven times more often than murder by rifle.”

This attempt to minimize the danger of assault weapons fails to recognize that they are banned by California and other states (and for a time by the federal government) because of their ability to kill a large number of people in a short amount of time.

Where’s Reality Here?

From a practical point of view, the Benitez decision seems ill-timed. With the pandemic ending, people are worried about a sudden rise in street violence and crime, and the record of multiple-victim shootings pared with the rise of hate crimes is drawing a lot of political attention — mostly along partisan lines, of course.

This ruling sounds tone-deaf to real life. Indeed, Joe Biden says he wants to re-introduce a ban on such assault-style weapons anew in the Congress.

These weapons bans don’t pass legislatures very easily. They are heavily debated and lobbied. For Judge Benitez to decide 30 years later that this one is unconstitutional doesn’t seem to fit with what’s been happening.

Fred Guttenberg, a gun safety activist whose daughter was killed in the Stoneman Douglas High School shooting in 2018, told the AP, “My daughter is in a cemetery because a Swiss Army Knife was not used, because it was an AR-15. If a Swiss Army Knife were used, my daughter and most of those other kids and adults would be alive today.” Other victim families said much the same.

The National Rifle Association called the judge’s decision “well-reasoned and principled. . . Judge Benitez highlighted what all gun owners know: these types of restrictive gun laws don’t make anyone safer and infringe on the rights of law-abiding Americans.

Judge Benitez described California’s law as a “failed experiment” because there have been mass killings with assault weapons since its enactment in 1989. As Chermerinsky notes, by that analysis, every criminal law would be a failed experiment because they are repeatedly violated.

We need solutions from our government, not polemics.