Extreme gun rights

The decision of a federal court in San Diego to strike down the California ban on assault weapons is one of the most extreme gun rights decisions in American history. It goes far beyond anything the U.S. Supreme Court, the 9th U.S. Circuit Court of Appeals, or any other federal court has done in extending the Second Amendment.

In Miller v. Bonta, 19-cv-1537-BEN (JLB) (S.D. Cal. June 4, 2021), Judge Roger Benitez declared unconstitutional a California law that has been on the books since 1989. Judge Benitez wrote his opinion in a manner that seemed intentionally provocative. He began his opinion by likening the AR-15 assault rifle to a Swiss army knife and said, "Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment." He said that this "is an average case about average guns used in average ways for average purposes." He said that, "In California, murder by knife occurs seven times more often than murder by rifle." He wrote that, "More people have died from the Covid-19 vaccine than mass shootings in California."

All of this ignores reality. This is the weapon that has been used in many of the most tragic mass shootings in the United States, including the 2012 Sandy Hook Elementary School shooting, the 2015 San Bernardino attack, the 2017 Las Vegas shooting, the 2017 Sutherland Springs church shooting, the 2018 Stoneman Douglas High School shooting, and the shooting at a Colorado grocery store this year that killed 10 people.

The question is whether prohibiting such weapons violates the Second Amendment. Every other federal court in the country to consider the issue upheld laws prohibiting assault weapons.

Nor does anything in a Supreme Court decision provide a basis for Judge Benitez's ruling. Quite the contrary, the Supreme Court has made clear that the government can prohibit such dangerous weapons.

From the time the Second Amendment was adopted in 1791 until the Supreme Court's decision in District of Columbia v. Heller in June 2008, no law regulating guns -- local, state or federal -- was declared unconstitutional by the Supreme Court. When the Supreme Court construed the Second Amendment, it said that the provision protected a right to have guns solely for the purpose of militia service. This is in accord with the beginning of the Amendment which declares its purpose: "A well regulated Militia, being necessary to the security of a free State."

But in Heller, the Supreme Court, in a 5-4 decision, said that the Second Amendment protects a right to have guns apart from militia service. It is often forgotten that the court's holding was quite narrow. In an opinion by Justice Antonin Scalia, the court struck down a D.C. ordinance that prohibited private ownership or possession of handguns. Justice Scalia's majority opinion focused on the right to have guns in the home for the sake of security. The court did not consider, and has not yet considered, whether the Second Amendment protects a right to have guns outside the home. That issue will be before the Supreme Court next term.

Justice Scalia's opinion was explicit that the Second Amendment is not absolute. He said that the government can limit who has guns, such as preventing those with felony convictions from having weapons. He said that the government can limit where people have firearms, such as in preventing them in or near schools or airports.

Most relevant to Judge Benitez's ruling, the Supreme Court said the government can regulate the type of weapons that a person can possess. Justice Scalia's opinion was explicit that the Second Amendment is limited to a right to possess "the weapons [that] were in common use at the time." He said that this "limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"

No one can say that AR-15 weapons existed, let alone were in common use, in 1791. Nor can it be plausibly denied that they very dangerous weapons. Judge Benitez's attempt to minimize the danger of assault weapons fails to recognize that they are banned by California and other states, and for a time were outlawed by the federal government, because of their ability to kill a large number of people in a short amount of time.

Judge Benitez described California's law as a "failed experiment" because people still have assault weapons and there have been mass killings using them. But there, of course, is no way to know how many more mass shootings would have occurred without the assault weapon ban. Moreover, by his analysis all criminal laws are a failure because they are violated.

My hope is that the 9th Circuit will reverse Judge Benitez and the Supreme Court will deny certiorari because there is no split among the circuits. But the reality is that the recent changes on the Supreme Court have created a much more pro-gun rights majority. Several of the conservative justices, like Clarence Thomas and Samuel Alito, already have urged more robust protection of the Second Amendment. The three newest justices -- Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett -- are also seen as likely to expand Second Amendment rights.

But even this very conservative court is not going to regard the Second Amendment as an absolute right. Perhaps it will recognize a right to have guns outside the home. But it should adhere to what Justice Scalia said in Heller: the Second Amendment protects only weapons that were in common use in 1791 and not dangerous or unusual weapons. Under this common sense approach, California's ban on assault weapons is clearly constitutional. 