Judge’s assault weapon ban may be on solid legal ground

Gov. Gavin Newsom thinks the federal judge who tossed out California’s assault weapons ban is “a wholly owned subsidiary of the gun lobby and the National Rifle Association.”

The fact that San Diegobased U.S. District Judge Roger Benitez chose National Gun Violence Awareness Day to release his latest pro-gun ruling “says everything about his character,” the governor asserted last week at a San Francisco news conference as state Attorney General Rob Bonta served notice he’s appealing the case.

“Shameful. Shameful in every way, shape or form.”

OK. Those are harsh words — unusually strong by a governor attacking a judge.

But the tough rhetoric is essentially powerless.

The judge’s written opinion may be on solid ground concerning a basic point: that what we call assault weapons have become so commonplace they now are protected by the Second Amendment.

Despite the state’s threedecade ban on the sale of assault weapons, the judge wrote, an estimated 1 million exist — 5% of California’s total 20 million private firearms arsenal.

That assault weapons are commonplace is important, Benitez explained, because in a landmark 2008 U.S. Supreme Court case — District of Columbia v. Heller — the majority’s test for a modern rifle’s Second Amendment protection was whether it is “commonly owned by law-abiding citizens for a lawful purpose.”

In the Heller case, the Supreme Court affirmed for the first time that individuals have a constitutional right to bear arms unrelated to militia use.

But in his 94-page ruling, Benitez failed to quote one key caveat of conservative Supreme Court Justice Antonin Scalia’s majority opinion:

“The right secured by the 2nd Amendment is not unlimited . ... The right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Benitez himself referred to “a modern rifle” as a military weapon, writing it “can also be useful for war. In fact, it is an ideal firearm for militia service.”

The AR-15, when equipped with a high-capacity magazine, is a militarystyle weapon. But it doesn’t quite rise to the Army’s M16 killing capabilities.

UC Berkeley law school dean Erwin Chemerinsky believes that the Supreme Court has only protected firearms that were common when the Second Amendment was adopted in 1791.

In a recent Times opinion piece, Chemerinsky quoted the Heller ruling as stating that this constitutional limitation is “supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

But UCLA law professor Adam Winkler, who focuses on the Constitution and Second Amendment issues, strongly disagrees with Chemerinsky.

Winkler interprets both the Heller opinion and a 1939 court ruling — United States v. Miller — as broadly protecting firearms currently in common use. That ruling regulated sawedoff shotguns and machine guns.

The Supreme Court has presumably become more pro-gun with three appointees by former President Trump. Conservatives now hold a 6-3 majority. Also, the once-liberal 9th U.S. Circuit Court of Appeals — where Benitez’s ruling is being appealed — has become more moderate, with several justices named by Trump.

“It’s likely that the Supreme Court is going to expand Second Amendment protections in coming years and that means striking down gun laws,” Winkler says.

That would mean more gun violence in California, statistics show.

“What we see is really, really clear,” says Robyn Thomas, executive director of the Giffords Law Center to Prevent Gun Violence. “States with the strongest gun laws have the lowest gun death rates. It’s indisputable.”

California’s gun laws are ranked No. 1 by Giffords. The state’s gun death rate is ranked-seventh best — seven fatalities per 100,000 people. Mississippi’s is the second-worst — 24 per 100,000.

“Gun safety saves lives, period, full stop,” Newsom said.

Fine. But the judge could have the last word. And if he does, it still won’t make a pocketknife equivalent to an assault weapon.