By Dave Workman
Editor-in-Chief
A federal judge in San Diego on Thursday handed down a 79-page ruling which strikes down California’s ban on so-called “assault weapons,” noting that under previous Supreme Court rulings, such firearms “may not be banned.”
U.S. District Judge Roger T. Benitez, who has handed down a string of pro-rights rulings on Second Amendment issues, including striking down a ban on so-called “high-capacity magazines,” granted a permanent injunction in the case known as Miller v. Bonta. This was a case brought by the Second Amendment Foundation and several others.
The state is almost sure to appeal to the Ninth U.S Circuit Court of Appeals in San Francisco, where—if past history is any indicator—an en banc panel may reverse the Benitez ruling, setting the stage for an appeal to the U.S. Supreme Court. SAF founder and Executive Vice President Alan Gottlieb told TGM after studying Judge Benitez’ ruling, that a high court confrontation is inevitable.
There are other challenges to semi-auto bans already in the system, including a SAF case challenging the Maryland ban, which also involves the Citizens Committee for the Right to Keep and Bear Arms, SAF’s sister organization.
“We’ve known all along the state ban could not hold up under constitutional scrutiny,” Gottlieb said in a statement to the media, “and we were encouraged by last year’s Supreme Court ruling in the Bruen case, which rejected the notion of ‘interest balancing’ when it comes to Second Amendment challenges. Judge Benitez came down on the side of the Constitution and history.”
“Judge Benitez has once again affirmed what we have argued since the beginning of this case,” SAF Executive Director Adam Kraut added. “California’s ban on so-called ‘assault weapons’ is, and always has been, unconstitutional. Despite the Supreme Court’s clear directive as to how these challenges are to be examined, the State of California did everything conceivable in an attempt to interject interest-balancing into the analysis. The Court, as required, ignored these attempts and correctly concluded that based on the text of the Second Amendment, as informed by this nation’s history and tradition, such arms are constitutionally protected. We are pleased with the Court’s decision and are proud to have vindicated the rights of millions of Californians.”
In his 79-page decision, Judge Benitez writes, “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…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.”
There is much more in the Benitez opinion which will likely give heartburn to the gun prohibition lobby.
“In the United States,” the judge wrote, “with its long tradition of gun ownership, there are no historical laws prohibiting simple possession of any type of firearm until long after the 1868 adoption of the Fourteenth Amendment. That is too late. ‘[P]ost-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.’ From this alone, a student of Heller, McDonald, and Bruen can see the writing on the wall for California’s ‘assault weapon’ ban.
“Notwithstanding having significant time to do so,” he continues, “the State has identified no national tradition of firearm regulation so broad in its coverage or so far reaching in its effect as its extreme ‘assault weapon’ statutes.”
In his sometimes scathing rejection of California’s effort to justify the semi-auto ban, Judge Benitez observes, “As the nation aged, the southern states tended to prohibit concealed carrying while the northern states remained free from almost any restrictions on guns. 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.
“It is remarkable to discover that there were no outright prohibitions on keeping or possessing guns,” he adds. “No laws of any kind. Based on a close review of the State’s law list and the Court’s own analysis, there are no Founding-era categorical bans on firearms in this nation’s history. Though it is the State’s burden, even after having been offered a clear opportunity to do so, the State has not identified any law, anywhere, at any time, between 1791 and 1868 that prohibited simple possession of a gun.”
A few pages later, Benitez has this observation about California’s effort to demonstrate some history of gun prohibitions.
“With nothing else to go on,” Benitez writes, “the State tries to identify a tradition of firearm regulation based on four laws that the State claims banned possession of “dangerous weapons.” Because a law criminalizing mere possession of a firearm in one’s home kept for self-defense, like California’s Assault Weapon Control Act, is so extreme, it would be very important if the State could at least point to a historical tradition of banning the simple possession of any kind of firearm. Unfortunately, the State is unable to find such a tradition. The four laws it offers up either did not ban firearms or they did not ban possession. Moreover, the four longshot laws came too late in time to establish a new tradition and cannot be used to confirm a non-existent earlier tradition.”
In his ruling, Judge Benitez stays its effect for ten days, presumably to allow the state time to prepare and submit an appeal to the Ninth Circuit Court for review. From there, the path leads directly to the Supreme Court.
