U.S.A. –-(AmmoLand.com)- Writing at Fox News, attorney Jonathan Turley—the Shapiro professor of public interest law at George Washington University—made a couple of critical observations in the wake of last Friday’s ruling by federal Judge Roger T. Benitez in Miller v. Bonta, which struck down California’s long standing ban on so-called “assault weapons” as unconstitutional.
The case will certainly be appealed, and the judge stayed his ruling for 30 days to allow California Attorney General Rob Bonta time to file. It is a case that could wind its way to the U.S. Supreme Court, with a 6-3 conservative majority, and the gun prohibition lobby is already having fits. The next year could reinforce the importance of voting in presidential elections, for it is the person in the Oval Office who makes nominations for federal court vacancies.
Turley, a Fox News contributor, cited Benitez’ explanation “that the ban on weapons like the AR-15 are based on both a misunderstanding of the weapons and a misinterpretation of the Constitution.”
Later, Turley adds, “Reasonable people can disagree, including on the meaning of the Second Amendment. What is troubling is the level of misleading and frankly disingenuous discussion of the issue.”
Turley focuses on promises made by politicians that would collide head-on with the constitution. He singles out former Texas Congressman Beto O’Rourke, the unsuccessful presidential candidate who vowed during a primary debate in Texas, “Hell, yes, we’re going to take your AR-15, your AK-47.”
“Such ‘hell yes’ moments are likely to continue with the approaching 2022 election,” Turley acknowledges, “but they may meet more judges who say ‘hell no’ in constitutional challenges.”
Judge Benitez falls into that category.
In his 94-page ruling, Judge Benitez—a George W. Bush appointee who assumed status as senior judge in the U.S. District Court for the Southern District of California in 2017—effectively demolished California’s ban and much of the state’s gun control philosophy. He previously ruled the state’s ban on so-called “high capacity magazines” is also unconstitutional, and that ruling was upheld by a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco. The ruling faces en banc review by a full panel of the court, and Turley suggests the case could wind up before the Supreme Court.
Another important consideration is that the Miller ruling has opened up gun control for review by the media, and the San Jose Mercury News took a good first swipe Sunday by analyzing whether strict gun laws actually reduce violent crime, and ultimately it appears the jury is still out.
The Mercury News reported, “Giffords, the gun control advocacy group, grades states annually on the strength of their gun laws. It gave all but one state with the 10 highest firearm fatality rates an F. That state, New Mexico — which received a C+ gun law grade and had a firearm fatality rate of 19.9 — has universal background checks and a red-flag law.”
A few lines later, the story acknowledges two states with A- grades from Giffords for their tough gun laws—Illinois and Maryland—are among the top ten states with high homicide rates. Chicago and Baltimore are homicide hotspots where body counts exceed those reported by other full states.
Then the newspaper added, “Half the states with the 10 lowest homicide rates also had loose gun laws and F grades from Giffords, from Maine (0.8) to South Dakota (1.5), both F-rated. Only two of the states with the 10 lowest rates had high gun law ratings, Hawaii (0.9) and Massachusetts (1.4), both graded A-minus.”
Finally, the Mercury News story quotes Greg Woods, a justice studies professor at San Jose State University, who told the newspaper, “Time and again, incidents and statistics remind us that criminally motivated individuals are less likely to follow such laws” as have been passed in California and other states.
If Mercury News can do a fair analysis, so can other news agencies, especially as they dissect Judge Benitez’ ruling. On Page 60 of the judge’s decision, one finds what amounts to a scathing smack at California’s ban.
“Before AWCA (Assault Weapons Control Act), twice in a decade, an assault weapon was used in a mass shooting,” the ruling notes. “On average, since AWCA, twice a decade, an assault weapon was used in a mass shooting. The assault weapon ban has had no effect. California’s experiment is a failure. (Emphasis in original.)
“To summarize, the average rate of mass shootings with assault weapons in California has not changed in the thirty years since the assault weapon ban was enacted,” the judge notes.
A few pages later, Judge Benitez dismantles a popular argument by gun banners, that “assault weapons” are powerful.
“Some say that a bullet fired from an AR-15 in self-defense could penetrate a wall and strike a bystander,” the judge observes. “The Court is unaware of any evidence that such an event has ever been reported. One thing is clear, there is no evidence that home defenders using AR-15s hitting bystanders with stray bullets through walls is a common problem. That a stray bullet fired in self-defense might penetrate a wall is an argument in favor of using a more accurate self-defense firearm. And there is evidence that AR-15 type rifles are both accurate and easy to fire accurately. There is also mixed evidence about whether AR-15 type rounds are more or less likely than handgun rounds to penetrate the walls of a typical home.”
Perhaps an enterprising reporter will delve into this subject more. It is comments like this from Benitez that suggest he has done considerable research to form and support his ruling.
Judge Benitez also criticized the Ninth Circuit for past Second Amendment rulings, which he said “were wrongly decided by following a majority of circuit courts down the wrong path.”
Former President Donald Trump managed to do something in his single-term that others were unable to accomplish during eight-year stays in the White House. His federal court appointments—some 200 in all including three to the high court—may be his greatest legacy. By restoring some semblance of balance to the federal courts, the doors are open to more cases like Miller, perhaps to be heard by more judges like Benitez.
About Dave Workman