By Dave Workman
Editor-in-Chief
Buried deep in his 79-page ruling which struck down—for the second time—California’s ban on so-called “assault weapons” is a blistering critique of testimony offered by expert witnesses used by the state to justify its prohibition, suggesting that U.S. District Judge Roger T. Benitez knows the firearms terrain far better than the state anticipated.
Judge Benitez, who has been handling many of the firearms cases originating in California for the past few years, waited until Page 66 of his detailed ruling to criticize the experts, which included economist Lucy Allen, who supplied data attempting to show how semi-auto rifles are rarely used in self-defense situations.
“To support this notion,” Judge Benitez observed, “Allen looks at a very small database of defensive gun uses collected from news broadcasts or publications, where 54% of the time the gun type is unknown. From this, she implies that using a rifle to defend oneself is incredibly rare. Her charts misleadingly suggest that rifles are used in just 2–4% of defensive gun uses and actually occurred only 51 times across three and one-half years. Other evidence suggests that guns are needed and used defensively thousands of times each year, and that rifles are used far more frequently than Allen’s statistics suggest.”
Over the course of four pages, the judge offers one criticism after another regarding Allen’s evidence in the state’s defense of its law. This sort of dissection could be important on appeal because it cuts to the heart of gun control; that is, how data may misrepresent or at least be misleading to people who use it to push a gun control agenda.
Benitez is not sympathetic to Allen’s contribution to this case.
On the other hand, anti-gun California Gov. Gavin Newsom is livid over the judge’s ruling, declaring in a message on “X” (formerly Twitter), “Today, a right-wing, NRA puppet — Judge Roger Benitez— tried to strip away CA’s three-decade-old assault weapon ban — comparing an assault rifle to a knife. An absolute disgrace. This is exactly why America needs a constitutional amendment to enshrine commonsense gun safety reforms. Until then, extremist judges will continue to tear down the will of the American people.”
But Newsom’s tirade does not stack up to the judge’s criticisms.
“How does Allen arrive at her opinion,” Judge Benitez asks rhetorically. “She looks at a database maintained by the Heritage Foundation. The database explicitly states that it is not intended to be comprehensive. It attempts to highlight some successful defensive gun uses that are reported by news organs. Allen counts 2,714 total defensive gun uses in the database between January 2019 and October 2022. Her results cannot be tested because she does not identify the specific incidents or how she scored the gun-type variables attributed to each incident. Consequently, there is no way to check her analysis or her math. Her study cannot be reproduced. Unfortunately, this means her opinion lacks classic indicia of reliability.”
A few paragraphs later, Judge Benitez writes, “Allen fails to mention that the Heritage Foundation webpage she linked to notes that guns are probably used in self-defense between 500,000 and 3,000,000 times a year. Nor does Allen mention any of the incidents where AR-15s were used that are linked on the Heritage Foundation defensive gun use visualization web page.”
Benitez then offers up a sampling of incidents in which armed citizens used semi-automatic rifles in self-defense. One of those cases involved a disabled 61-year-old man who was attacked and shot in his home but used an AR-15 to fight back. Another involved a Georgia man who used an AR-15 to shoot three attackers “after they approached his home at 4 a.m. with their faces covered and firing shots.”
The judge mentions a third case involving a pregnant wife and mother “who used an AR-15 to defend against multiple armed attackers.”
One page later in his ruling, Judge Benitez refers to other research, produced by Georgetown University political economist William English, whose research was detailed in Reason last year. English’s work was described as the “largest and most comprehensive survey of American gun owners ever conducted.” Reason’s Jacob Sullum wrote that the English study “suggests” that American gun owners “use firearms in self-defense about 1.7 million times a year.”
“It also confirms,” Sullum wrote, “that AR-15-style rifles and magazines that hold more than 10 rounds, frequent targets of gun control legislation, are in common use for lawful purposes, which the Supreme Court has said is the test for arms covered by the Second Amendment.”
Referring to English’s work, Judge Benitez notes in his decision, “Disturbingly, English found 51.2% of defensive gun uses involve more than one assailant. In contrast to Allen’s estimate, English estimates that rifles are used defensively approximately 13% of the time. English also estimates about 24,600,000 individuals have owned AR-15 styled rifles. The evidence, once again, suggests that modern rifles are commonly owned and useful for self-defense.”
The ruling will be appealed, the case will make its way once again up the court chain, and may even end up before the U.S. Supreme Court, along with other challenges to similar bans in Maryland and Washington state.
