Defending Gun Rights Against California

U.S. District Judge Roger Benitez of San Diego struck down California’s Assault Weapon Ban last week, but the ruling will not go into effect just yet. The 9th Circuit Court has allowed California to continue to enforce this ban while their Attorney General Rob Bonta appeals this case. This has happened a few times already; Benitez has found California’s magazine bans and weapon bans unconstitutional in the past, only for him to be overruled by the 9th Circuit. It’s an interesting case that has a chance of making it all the way to the Supreme Court.

But while we wait to see what happens (probably early next year), you should read Judge Benitez’s ruling. If it were a YouTube video, we would strongly encourage you to watch it. If it were a book, we would recommend that you buy it. As a freely available 60-page PDF, you should absolutely read it. Some of it is dry legal language, but there are some real zingers in there too. All in all, it is an excellent collection of current gun control arguments, neatly answered and fully footnoted; a fantastic document that explains the current state of post-Bruen legal battles.

Let’s check out a few paragraphs on how Benitez explains limits on government authority:

Falling back on an old, recycled justification, the State says that its ban should stand because a person can have as many other rifles, shotguns, and pistols as one wants. The problem is that the alternatives-remain argument has no limiting principle and would justify incremental firearm bans until there is only a single-shot derringer remaining for lawful self-defense. Heller demolished that argument. The same argument – that a handgun ban might be justified because government-approved alternatives are available – was rejected in Heller and it is rejected here. Heller said quite clearly that it is no constitutional answer for government to say that it is permissible to ban some guns so long as other guns are allowed.

This is not the way American Constitutional rights work. It is not permissible for a state to ban some books simply because there are other books to read, or to close synagogues because churches and mosques are open. In their normal configurations, the so-called “assault weapons” banned in California are modern firearms commonly-owned by law-abiding citizens for lawful purposes across the nation. Under Heller, McDonald, Caetano, and Bruen, they may not be banned.

He also explains some of the historical tests required by Bruen; namely that for a firearm regulation to not violate the Second Amendment, it must match a similar firearm regulation from the historical era of the signing of the Second Amendment.

Now, if you have read any media coverage of his past rulings, you have probably seen Benitez mocked by reporters for comparing an AR-15 to a Swiss Army knife. He is being mocked again for comparing the AR-15 to a bowie knife, but it is really California’s own lawyers and expert witnesses who have equated guns and knives by claiming that laws limiting the concealed carry of bowie knives in the late 1800s are the same things as gun control laws from the late 1700s.

Because the State cannot find a historic regulation of firearms, it turns to the historic regulations of weapons, whether bladed weapons, melee weapons, blunt weapons, or lead-filled weapons. Yet, the Supreme Court does not look to knife laws when reviewing a restriction about guns. Bruen teaches that a state’s burden is to identify a historical tradition of firearm regulation, not a tradition of knife regulation… In short, California weakly argues that because some states have regulated in some ways the use of some weapons, that translates into the State being able to regulate any weapon in any way. This is a non sequitur and particularly in this case—a bridge too far.

He also dismantled some other widely-repeated historic gun control myths. For example, he pointed out that colonial gunpowder storage regulations were a city fire safety measure, not gun control. Additionally, he noted that rapidly-firing repeaters and Gatling guns were not only widely available in the 1800s, but private ownership of them was explicitly protected by Andrews v. State in 1871.

And then he dove into newer arguments about modern self-defense usage:

The State suggests that standard AR-15-type rifles might be commonly owned, but are not used for self-defense. The State says that there is no evidence that firearms equipped with the prohibited accessories or semiautomatic centerfire rifles of less than 30 inches in length are “commonly used” for self-defense. Once again, the burden is on the government to prove that remarkable claim. It does not take a Nobel laureate to figure out that if Americans own 400 million guns and 400 million gun crimes are not being committed, that Americans are using their guns for something other than crime.

If Americans own 24.4 million AR-15s and 24.4 million gun crimes are not being committed with AR-15s, Americans must be using them for lawful purposes. Some people actively use AR-15s for hunting or sport or target practice. Probably the vast majority of Americans that own guns keep them and use them for self-defense the same way that a driver puts on a seat belt in the case of a collision.

Though collisions rarely happen, the seat belt is used for protection and to be ready for the unexpected collision. A reserve canopy is being used on a parachute jump, although it is not deployed, in case the main parachute fails. A cell phone in one’s pocket is being used when waiting for a telephone call or when one might need to make a call. An AR-15 under one’s bed at night is being used for self-defense even when the night is quiet.

He also took the time to address statements and opinions from California’s expert witnesses, folks like Dr. Louis Klarevas, Economist Lucy Allen, and Professor John Donahue, usually pointing out that their “opinions are entitled to no weight.” He also commented on our old friend Ryan Busse, someone we have discussed at length on the T.REX Podcast:

Ryan Busse is a Giffords senior advisor and former firearm industry executive for a manufacturer and seller that specializes in pistols and revolvers, but not AR-15 platform rifles. The few rifles sold by his former firm are traditional-style bolt action models. Busse opines that a firearm does not need any of the devices, accessories, or configurations listed in the “assault weapon” ban to operate as a gun as intended or to use a gun effectively for self-defense. It is not at all clear what expertise Busse has to support his opinion. He does not describe any professional experience using AR-15 platform rifles for sport or self-defense. In any event, this type of opinion is not relevant to the question of whether the State may ban a firearm that is commonly owned by law-abiding citizens for lawful purposes and does not fit the prerequisites for Federal Rule of Evidence 702.

All in all, he did a great job at documenting and dismantling some trendy gun control arguments and collecting some great statistics on defensive firearm uses, crime, and firearm ownership, but also a solid re-iteration of the historical tests required by Bruen. We will let Judge Benitez have the last word in this email:

The State’s attempt to ban these popular firearms creates the extreme policy that a handful of criminals can dictate the conduct and infringe on the freedom of law-abiding citizens. As Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of permissible state action. California’s answer to the criminal misuse of a few is to disarm its many good residents. That knee-jerk reaction is constitutionally untenable, just as it was 250 years ago. The Second Amendment stands as a shield from government imposition of that policy.

Check out last week’s newsletter from Open Source Defense for more information about the ATF’s court case involving Larry Vickers. It explains how Law Letters work, but also how prosecutors use plea deals to bully defendants into accepting punishments that they may not be able to get at trial.