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By Larry Keane

Gun control supporters are howling. They’re gnashing teeth with rage knowing that their “failed experiment” and labyrinth of lies came crashing down. Their gun grab is revealed for what it is – unconstitutional.

U.S. District Court Judge Roger Benitez struck down California’s 30-year-old ban on Modern Sporting Rifles (MSRs) when he issued his ruling on Miller v. Bonta, a challenge against the state’s law banning so-called “assault rifles.” Judge Benitez cleanly took apart the law by asking simple questions. Does the law violate the Constitution? Does the law adhere to judicial precedent? Are AR-15s commonly owned?

Truck-sized Holes in the Anti-Gun Argument

On the Constitutionality question he wrote, “The Second Amendment protects modern weapons… They are principally AR-15 type rifles, pistols, and shotguns. Plaintiffs and others refer to them as “modern sporting rifles” although they are clearly useful for more than just sport.”

On the question of judicial precedent, Judge Benitez examined it both under the landmark Heller decision, which held there is a pre-existing individual right to keep and bear arms in common use (that applies to the States) and the U.S. Court of Appeals for the Ninth Circuit’s “two-step levels-of-scrutiny test.”

“The overwhelming majority of citizens who own and keep the popular AR-15 rifle and its many variants do so for lawful purposes, including self-defense at home,” Judge Benitez wrote. “Under Heller, that is all that is needed. Using the easy to understand Heller test, it is obvious that the California assault weapon ban is unconstitutional. Under the Heller test, judicial review can end right here.”

Judge Benitez wrote that the Ninth Circuit’s two-step test, unlike Heller, is anything but simple. The first step is determining if the law is presumptively lawful or a historical regulation. California’s ban fails on both counts. The second step questions the scrutiny the prospective law would require and examines the burden it places on the Second Amendment. Since the Second Amendment clearly holds the right of self-defense in highest regard, and California’s ban criminalizes the ability to defend oneself in the home with an MSR, it fails the scrutiny test.

“When a severe restriction on the core right of self-defense amounts to a destruction of the Second Amendment right, it is unconstitutional under any level of scrutiny,” Judge Benitez wrote.

The final question of whether MSRs are commonly-owned was asked and answered effectively.

Feral hog hunting hunt ar-15 MSR caliber
(Courtesy Kat Ainsworth Stevens)

“As applied to [Assault Weapons Control Act], the Heller test asks: is a modern rifle commonly owned by law-abiding citizens for a lawful purpose? For the AR-15 type rifle the answer is ‘yes.’”

Judge Benitez noted that as of 2018, there were nearly 20 million MSRs in circulation. “There are probably more modern rifles in circulation than there are Ford F-150 pickup trucks,” he wrote. “In 2018, 909,330 Ford F-150s were sold. Twice as many modern rifles were sold the same year. Imagine, every time one passes a new Ford pickup truck, it is a reminder that two new modern rifles have been purchased. That is a lot of modern rifles owned by Americans.”

The Lamentations of the Left

This has gun control baying at the moon.

Igor Volsky, executive director of Guns Down America and vice president at the far-left think tank Center for American Progress, let loose with a rapid-fire tweet storm.

He started out calling the ruling “infuriating,” claiming a 30-round magazine can be fired off in less than five seconds (maybe by Jerry Miculek), somehow attempts to argue that just two rounds are used in self-defense, which Judge Benitez discredited, and ends with demands from liberal lawmakers on how they’re going to write laws that survive Constitutional examination by the courts.

Short answer, Igor; they won’t and they shouldn’t.

Keith Olbermann, a sports commentator who went far-left on politics before getting drummed off even liberal networks, called Judge Benitez a “death-worshiping, fascist” on Twitter.

Olbermann didn’t account for the specific references Judge Benitez made to the inherent right of self-defense, which is life preservation, by definition.

Stanford University law professor and gun control advocate John Donahue, whose gun control testimony was discredited by Judge Benitez, told The Mercury News, “This has been a long-term effort on the part of the gun lobby, but until they got the fifth (conservative) justice, I thought it was largely going to be ineffectual. But now, we are at great peril.”

He’s right on one count. NSSF has been pushing a long-term effort to get the courts to apply the law according to the Constitution.

dick heller DC v heller scotus decision
Dick Heller signs an autograph outside the Supreme Court in Washington, Thursday, June 26, 2008, after the court ruled that Americans have a constitutional right to keep guns in their homes for self-defense, the justices’ first major pronouncement on gun control in U.S. history. (AP Photo/Jose Luis Magana)

Giffords Law Center to Prevent Gun Violence called Judge Benitez an “extreme outlier.” This is the same Giffords organization that still employs David Chipman, President Biden’s nominee to head the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Chipman wants to ban “assault weapons” but couldn’t define them when questioned at his recent confirmation hearing before the Senate Judiciary Committee.

California Vows Disarmament

Judge Benitez granted a stay in his decision to allow California’s Democratic Attorney General Rob Bonta to appeal to the Ninth Circuit. Democratic Gov. Gavin Newsom’s office called the decision a “slap in the face” and promised, “We’re not backing down from this fight, and we’ll continue pushing for common sense gun laws that will save lives.”

California has among the strictest of gun control laws and prefers their citizens to remain unarmed and helpless when their lives are threatened. Judge Benitez noted that distinction in his decision when he compared the California’s litigation stance to views professed by Oakland’s police chief that crime victims shouldn’t arm themselves, but be willing victims who can testify against their attackers.

“Of course, a dead victim is a lousy witness,” Judge Benitez noted.

Judge Benitez also outlined the importance of the courts defending the rights of the citizens against an overzealous government authority that would nullify rights in the name of public safety.

“In the end, the Bill of Rights is not a list of suggestions or guidelines for social balancing. The Bill of Rights prevents the tyranny of the majority from taking away the rights of a minority,” Judge Benitez wrote.

“When a state nibbles on Constitutional rights, who protects the minorities? The federal courts. The Second Amendment protects any law-abiding citizen’s right to choose to be armed to defend himself, his family, and his home. At the same time, the Second Amendment protects a citizen’s right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants. The Second Amendment is about America’s freedom: the freedom to protect oneself, family, home, and homeland. California’s assault weapon ban disrespects that freedom.”

This is how Judge Benitez makes gun control howl.

 

Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

 

 

46 COMMENTS

  1. “When a state nibbles on Constitutional rights, who protects the minorities? The federal courts. The Second Amendment protects any law-abiding citizen’s right to choose to be armed to defend himself, his family, and his home. At the same time, the Second Amendment protects a citizen’s right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants. The Second Amendment is about America’s freedom: the freedom to protect oneself, family, home, and homeland. California’s assault weapon ban disrespects that freedom.” – Judge Benitez

    Worth repeating. The man is a prophet of Liberty.

    • personal attacks are pouring down from the left on this guy…always a good sign you’re doing something right….

  2. The price of freedom is eternal vigilance.

    The left never accepts the fact they’ve been defeated and will do all sorts of end runs and create confusing loopholes to try to reinstate their silly bans. They’re the 1st ones to preach “majority rules” when they win, but they sure don’t accept it when they lose.

  3. The judge sees beyond the surface of Gun Control and obviously dived into the belly of the beast to come up with such a ruling especially in the state of CA. Gun Control perverts are not outraged. They are suffering from a deranged thirst for Gun Control.

    • Debbie,

      If you liked his opinion in the Miller case, do yourself a favor and read his opinion in the Duncan v. Becerra case (also up on appeal to the 9th Circus). Benitez “gets it”, writes clearly and concisely, and isn’t shy about taking a strong position. I somewhat cringed at his tone-deaf analogy of the AR-15 to a Swiss Army knife – not that I disagreed with it, but that I knew it would “trigger” all the gun control zealots, and they would deliberately misstate his point (and I was dead right – read any left-of-center analysis of the ruling).

  4. What I always find humorous is the 2nd Amendment was specifically meant to protect “Military Arms” in the hands of citizens. The Founders of this country are rolling over in their graves.

    • I too thought that his analogy was “unfortunate” because I assumed it would immediately be misconstrued (it was) by anyone who had not read the entire 94 page opinion. Howls that a SAK is “nothing like” an AR-15; a SAK can kill, but not as handily as an AR; therefore the “comparison” was an insult to anyone who has suffered from “gun violence.” The complaints clearly demonstrated that few r e ad beyond the first paragraph.
      Ahem. It is not a comparison, it is an analogy. Just as a SAK is a multi8tool, so ix the AR, no matter how many claim that it is only good for “killing people”, no matter that very few have actually been killed, especially when compared to the toll of handguns, and notwithstanding its great utility in hunting and sport (to say nothing of its utility in militia service).
      I saw a clip of the president of Brady who made a few whoppers in CNN, including that “multiple” studies had shown that the AR ban had significantly reduced “gun violence.”

    • No, a Federal judge has told CA to do the right thing, but CA (Newsom, Bonta, et al) are promising to fight it and continue doing the wrong thing.

      The main thing is to keep the main thing the main thing.

  5. Your headline makes it appear there’s a difference between the gun grabbers and the media.

    There is none.

  6. Though it is a long read you should really read the judges ruling. He dissects it down on several fronts that really destroys the lefts talking points and their so called facts.

    There are things in there that you can use for the comments to the SB brace issue as well. We need more Judges like this guy and maybe with this case it will bring the truth to the front and the courts will have to follow.

    Let’s hope this does go to the Supreme Court and that they follow the logic and law as well.

    • “Though it is a long read you should really read the judges ruling. He dissects it down on several fronts that really destroys the lefts talking points and their so called facts.”

      Yeah, all that focus on “Swiss-army knife” to distract from a world-class pimp-slapping by Saint Benitez.

      Heard a neat statistic about the frequency of ‘school shootings’ happening – Statistically, per-school, it will happen once every 6 THOUSAND years at the rate they happen today…

  7. @igorvolsky
    18/ Assault weapons fall outside the scope of #2A b/c like the M16, they’re most useful in military service.

    SCOTUS has made clear that #2A does NOT protect weapons that are “most useful in military service,” such as the “M-16 and the like.”

    Well, the M-16 is NOT the AR15. M16’s are ‘assault rifles’. There is no such thing as assault weapons. If your going to say that then I say that hands and feet assault more people every year than AR15’s.

    You have your so called facts all twisted.

    • And U.S. v. Miller holds (and Miller is STILL controlling law) almost the exact opposite – that the only ‘arms’ that CAN be safely regulated under the 2A are those that are NOT suitable for or commonly used in the military (i.e., the sawed-off shotgun in question was ruled to be subject to regulation without violating the 2A BECAUSE (according to the SCOTUS) it was not commonly used for military purposes (obviously a factually incorrect conclusion, but whaddayagonnado???).

      IMHO, there is no area of Constitutional law that is so thoroughly screwed up, inconsistent, self-contradictory and often just plain silly as 2A jurisprudence. One of the standards for SCOTUS granting certiorari for hearing a case is whether there is a “conflict among the Circuits”. I defy ANYONE to read current, controlling precedent on the 2A at the Circuit Court of Appeal level, and find ANY area of 2A law that DOESN’T have major “conflict among the Circuits”.

      Bleeaah!!! It’s enough to make a rational man weep. And frankly, SCOTUS is causing most of the inconsistencies by NOT cracking down on the Circuit Courts of Appeals’ blatant screwing around with the (relatively) simple holding in Heller and Miller.

      • One might get the idea that SCOTUS has become part of the problem through coercion and/or apathy. Is it possible that excessive liberalism has infected that too? Oh yes! I don’t believe there is anyone left in Washington that actually loves this nation or is even interested in the rule of law anymore.

      • Correct on all points. Miller screwed us because there was no defense, and the prosecution failed to admit that sbs were commonly used in the trenches and appropriate for militia and military, thus protected.

      • the sawed-off shotgun in question was ruled to be subject to regulation without violating the 2A BECAUSE (according to the SCOTUS) it was not commonly used for military purposes (obviously a factually incorrect conclusion, but whaddayagonnado???

        At the time that came out, I looked up the then current use of shotguns onboard Navy ships, since I knew that they were used to clear ships of invaders. I believe the typical Navy shotgun had a barrel length between 10 and 14 inches or thereabouts.

        • And I know multiple Nam vets who told me that short-barrelled and sawed-off shotguns were frequently used, there. Sawed-off shotguns were used extensively in WW1 (where they were commonly called “trench brooms”, and the Germans tried, and failed, to have their use declared a war crime). While the conclusion that short barrelled shotguns weren’t commonly used in the military is clearly wrong, it is still true that Miller held as protected by the 2A specifically those weapons which WERE in common use by the military.

  8. California’s gotta get back to the days when Kwai Chang Caine wandered around barefoot and everyone and his duck carried a gun. Good times.

  9. If we get a freedom week I can’t wait!!
    Gun companies better have lines of semi trailers on the CA boarders stocked full of scary black rifles! They will sell out faster than you can spit and say hello!
    SCOTUS needs to get their act together. They can not continue to kick the can down the road on these issues.

    • The last freedom week got me some of those scary standard capacity mags.

      I don’t like or want an AR. But if a freedom week occurs again I’m buying one and a metric shit ton of mags for it.

      • Get two lowers for redundancy.

        As for uppers, I highly recommend the standard 5.56 in a longer barrel length, plus an extra upper in .300 BLK in shorter, since it uses the same mags and buffer spring/weight.

    • All you really need to supply is a magazine catch, a magazine catch spring, and a magazine release button. Either that, or a pistol grip.

  10. “U.S. District Court Judge Roger Benitez struck down California’s 30-year-old ban on Modern Sporting Rifles (MSRs)…”

    Um, I believe the ban has been in place for three years, not thirty.

    • California’s first attempt at a ban (there have been multiple amendments since as inventive inventors designed work -arounds to various impositions and restrictions) was the Roberti-Roos Assault Weapons Control Act of 1989 (effective Jan 1, 1990). The ban of which you speak is the most recent assault weapons registration law. That law allows you to keep rifles with mag locks and fixed stocks and pistol grips as long as they were registered with the State. Or you could go “featureless” or a fixed mag alternative with no registration requirement. Which in and of itself points out the silliness of the California ban–there are many thousands (even hundreds of thousands) of unregistered ARs that are perfectly legal under current law, plus and additional 185,000 RAWs (of a variety of configurations, including full auto M-16s) that haven’t killed anyone this year.

      California is dead set on banning every black rifle and requiring their destruction or removal from the state. For example, a RAW cannot be transferred by any means to anyone within the state (but may be transferred to the police, a gun dealer, or out of state). The Legislature just hasn’t figured out how to do it without being forced to pay fair value for them, something that wold likely run into the hundreds of millions of dollars.

  11. Under the logic used here the nfa should be overturned. The atf claims 1.3 million silencers and Although I can’t find number of SBR in the us I would figure it’s a lot more than that.
    Seems to be fairly common and common in use so taxing and registering them it seems like it would be unconstitutional.

    • The NFA was unconstitutional in 1934 and is unconstitutional now. But after being in place for 85 years I think it should be repealed rather than overturned.

  12. It’s a pity that Judge Benitez didn’t put a 1 year time limit on the stay of his decision. That might have lit a fire under the next phase of the legal action.

    • The real pity is that he did not make the ruling effective immediately. Rights delayed are rights denied.

    • Tommy,

      Not how it works in Federal Court. Benitez could have made the ruling and the injunction effective immediately, and dared the 9th to grant its own injunction pending appeal (which they undoubtedly would have done, on an emergency petition from Bonta). Michael Crognale, I totally agree that rights delayed are rights denied, but the story of the Duncan v. Becerra and Benitez’ subsequent suspension of his own injunction was that he was treatened that if he didn’t suspend, the 9th would grant its own injunction, overruling his pending appeal, and California never would have had “Freedom Week”. I used to have a stack of Freedom Week mags (until I lost them in that boating accident), and even though they were sold after the CA standard capacity magazine ban, they are legal in CA, just as they would have been if I’d bought them before the ban. Hope the fish at the bottom of that lake appreciate them.

  13. Personally speaking, I prefer bolt action rifles with charger slots is caliber 30-06, though I have owned and used the above described in 7.62 MM NATO,aka 308 Winchester, and a Garand that I fired in competition for several years. To each their own remains of course.

    As to this Assault Weapons foolishness, the people pushing this idiocy need to read history. Semiautomatic Rifles feeding from internal magazines as well as external magazines have been made and sold in this country since prior to World War 1. Remington and Winchester offered semiautomatic rifles starting between 1906 and 1908. External appearance has changed, but not much else concerning hardware. By the way, automatic rifles and machine guns, notwithstanding stories to the contrary, according to federal law, can be owned and kept by “civilians”. There is a procedure to go through, and the payment of a special tax, which is off putting to some. Additionally, some of the several states preclude the ownership of automatic weapons aka machine guns, by the private citizen. Check that out first. As a result of really dumb legislation, the cost of transferable machine guns has gone to ridiculous heights, money being another possible problem.

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