For many years I have criticized politicians who promise to promulgate a comprehensive gun control law that would violate the case law of the second amendment. After every mass shooting, politicians promise to remove weapons from society if they know that such promises will mislead voters as to the scope of action in the region. In reality, the scope for legislative action is quite limited. Additionally, restrictions like clip capacity are unlikely to make any significant difference in gun violence. Now a federal judge has lifted California’s three-decade-old ban on assault weapons in violation of the second amendment. The decision could come under the ongoing scrutiny of the nomination of David Chipman, who will head President Joe Biden’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
In Miller v. Bonta, US District Judge Roger Benitez of San Diego found that the ban on weapons such as the AR-15 is based on both a misunderstanding of the weapons and a misinterpretation of the constitution. I previously discussed many of the same issues related to the AR-15, which remains one of the most popular weapons in the United States:
“While a ban on AR-15 sounds compelling, it collapses on closer inspection. The AR-15 and other weapons in their class use an intermediate cartridge that is actually less powerful than the one used in a rifle. These weapons are often twice as powerful as a handgun, but not nearly as powerful as a rifle. In addition, weapons like the AR-15 are popular because they are modular and allow different grips and barrels. “
Judge Benitez noted many of the same problems in his ruling. He was of the opinion that the ban could not meet any stricter scrutiny. He notes that the AR-15’s popularity is due to its versatility. In a controversial statement, he stated: “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and home defense equipment. Good for home and battle. “
The problem is that many politicians, like California Governor Gavin Newsom, opposed the District of Columbia Supreme Court ruling against Heller in 2008, which reiterated that the right to bear arms is an individual right under the Second Amendment. The court has repeatedly confirmed this landmark decision. In 2010 the court ruled that this constitutional right applies to both the states and the federal government, as it is one of these “fundamental rights that are necessary for our system of orderly freedom”.
These cases are controlling, as politicians and commentators fully understand. Benitez calls the test for such laws, believing the state is nowhere near living up to its burden. Before interpreting this test and applying it, the Tribunal shall determine:
The Heller test is a test that every citizen can understand. Heller asks if a law prohibits a firearm belonging to law-abiding citizens for legitimate purposes. It’s a hardware test. Heller distinguishes between firearms that are generally used for lawful purposes and unusual weapons that are used for illegal purposes, as well as weapons that are used exclusively for military purposes. Applied to the AWCA, the Heller Test asks: Is a modern rifle ordinarily in possession of law abiding citizens for a legitimate purpose? For the AR-15 rifle, the answer is yes. The overwhelming majority of citizens who own and keep the popular AR-15 rifle and its many variants do so for legitimate purposes, including self-defense at home. Under Heller, that’s all that is needed. The easy-to-understand Heller test makes it clear that the California ban on assault weapons is unconstitutional. After the Heller test, the judicial review can end right here.
This is just the latest major decision by Benitez in the region. In 2017, he lifted the almost two-decade-old ban on selling and buying magazines with more than 10 bullets. As discussed recently, the Ninth Circle confirmed its decision, which is now to be renegotiated by an eleven-member committee. These cases have a very good chance of being reviewed in the Supreme Court due to the national division and the conservative majority of 6: 3 in the court.
The decision could have some implications for Chipman’s upcoming nomination as director of the ATF. Chipman is a former ATF special agent and senior policy advisor to the gun control organization Giffords. In his hearing, Chipman stated, “With regard to the AR-15, I support a ban as presented in a Senate bill and endorsed by the President. The AR-15 is a weapon that was issued to me on ATF’s SWAT team. It is a particularly deadly weapon and regulates it like other particular deadly weapons that I have advocated. “
Chipman was confronted with the definition of what an assault weapon is. He told the Senate that the ATF defines an assault rifle as “any semi-automatic rifle that can hold a detachable magazine above the .22 caliber, which includes a .223, that is, you will largely know the AR-15 round. ”
That would encompass a wide range of weapons. Indeed, a statement by Judge Benitez may resonate with some senators:
“This case is not about exceptional weapons that are at the outer limits of the protection of the second amendment. The forbidden “assault weapons” are not bazookas, howitzers or machine guns. These weapons are dangerous and only useful for military purposes. Instead, the firearms known as “assault weapons” are fairly common, popular, modern rifles. This is an average case about average weapons used in average ways for average purposes.
One is to be forgiven for being convinced by the news media and others that the nation is being inundated with murderous AR-15 assault rifles. However, the facts do not support this. The characterization of a finding as “fact” or “right” is not decisive. To the extent that a statement is characterized as a “law”, but more correctly as a “fact; (or vice versa) the substance outweighs the shape. Exaggeration and facts are important. The Federal Bureau of Investigation’s murder statistics do not track assault rifles, but they show that knife killings are far more common than guns of any kind. “
In fairness to Chipman, he made it clear that he would enforce anything federal law mandates regarding a ban or underlying definitions. However, he is an outspoken supporter of the ban on possession of weapons such as the AR-15, which has just been declared as protected by this court.
These are difficult guidelines and difficult cases. Sensible people may disagree, including on the meaning of the second amendment. What is worrying is the extent of the misleading and frankly insincere discussion of the subject. The public is constantly being told that the election of certain politicians will result in full gun control when current case law directly contradicts such claims.
Such was the case in the 2020 Democratic debates, where candidates make untenable claims and promises. For example, President Joe Biden now attacked Senator Bernie Sanders over a vote that had favored the arms industry. Biden stated that 150 million Americans have been killed by guns since the vote. When people asked the campaign if about half of our population were killed by gun violence, they said the number was probably closer to 150,000.
Even so, many of the candidates promised massive changes. Biden stated, “I want to tell you that if I get elected to the NRA, I’ll come for you, and gun manufacturers, I’ll run you and beat you.” Beto O’Rourke spoke on the subject, best known as “Hell, yeah, we’ll take your AR-15, your AK-47.” Biden later stated that he would make O’Rourke some kind of “gun tsar” for his government.
Such “hell yes” moments are likely to continue into the upcoming 2022 elections, but you could encounter more judges saying “hell no” in a constitutional challenge.
Here is the opinion: Miller v. Bonta
A shorter version of this column was on Fox.com