This is a welcome development:
A federal judge ruled Friday that California’s “assault weapons” ban is unconstitutional.
The court found the state’s ban on the sale of AR-15s and other popular rifles violated the Second Amendment. Judge Roger Benitez [of the United States District Court for the Southern District of California] ruled the guns targeted by California are in common use. He said the state ran afoul of the Constitution in restricting access to them.
“This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection,” Benitez wrote. “The banned ‘assault weapons’ are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed ‘assault weapons’ are fairly ordinary, popular, modern rifles.
“This is an average case about average guns used in average ways for average purposes.”
California’s ban is one of the oldest and most aggressive in the country. It was instituted in 1989 but has been expanded multiple times in the decades since. The state added more guns and features to the ban. Eventually, it banned the possession of unregistered “assault weapons” before the latest iteration of the ban was challenged by gun-rights groups in federal court.
Benitez said the AR-15’s versatility made it widely popular in the United States, and that popularity is part of what gives it protection under the Second Amendment. He compared the modular firearm to a “Swiss Army Knife” and noted its use for home defense and civil defense.
“Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller and United States v. Miller,” he said. “Yet, the State of California makes it a crime to have an AR15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.”
1989 means the ban even predates the cosmetic Clinton-era “assault weapon” ban intended to ban ARs, AKs, and most modern sporting rifles. Indeed, the Roberti-Roos Assault Weapons Control Act of 1989 was the model the Clinton Administration used for their own ban, including the dreaded barrel shroud. Roberti-Roos is also the source of California’s infamous ban on detachable magazines and those holding more than 10 rounds.
For those that say the Republican Party has been completely useless at achieving conservative objectives, I would point to the appointment of strong Federalist Society and pro-Second Amendment judges as one of many counter examples. Without Reagan and Bush41, we don’t get Scalia and Thomas, and without them we don’t get Heller. Indeed, without originalist judges, the Second Amendment would probably have been legislated away entirely by now…
Tags: AR-15, Assault Weapon, California, Guns, Modern Sporting Rifle, Roberti-Roos Assault Weapons Control Act of 1989, Roger Benitez, Second Amendment
I like the ruling, and esp that the judge called them Modern rifles, and not Assault Weapons, because that is really what they are, and why the left hates them. Given their druthers, they would close the technology window of allowable firearms at roughly 1960, some 60 years ago. And, of course, 5he 2nd Amdt says nothing about limiting allowable arms to 60 60 year old technology.
Great news, though I’m slightly disappointed in that, when I bought my pistol, the sticker on the case proclaimed “Not legal in the State of California.” I thought that was a nice feature, though I suppose it’s no longer true.
“5he 2nd Amdt says nothing about limiting allowable arms to 60 60 year old technology”
the second was written in a context of religious and moral community citizen militia using muzzle-loaded muskets. surely a context of random strangers of unknown moral and mental state possessing semi-auto weapons requires a different approach to firearms ownership?
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Ant7,
It’s good that you bring up the context of the men and the community that the 2nd Amendment was written by, but I think you miss the reality of that historical political context.
The 2nd amendment was written by men who had just succeeded in waging a long and bloody rebellion *against their lawful government*. They did so with all of the then-current weapons of war (muskets, cannon, warships, etc), much of which was privately owned.
It’s not about muskets, but about maintaining the ability for the people to “dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…”
“maintaining the ability for the people to ‘dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…’”
sure. but again, the context in which this concept is expressed simply no longer exists. the country that rebelled against britain consisted mostly of independent self-supporting farmers who understood that they were (both voluntarily and necessarily) members of a polis – the present reality is that this population has been replaced by dependent consumers who rely on resources and process located thousands of miles away from themselves in order to survive. furthermore, most “patriots” do not see themselves as members of any nation or race or people but rather simply as isolated individuals – they don’t want to dissolve the political bands which bind them to another people and form their own political bands, they want to dissolve all social and political connections with all other people as such. such people may have 15’s and all sorts of other stuff but that’s irrelevant, because they cannot achieve what they would use them for.
The GOP has appointed so many conservative, strict Constitutionalist judges in the past 50 years that we now live in 1984. How does the author explain that, especially the do nothing Federalist Society that favors menschs like Roberts.
In light of the recent ruling (6/3/21 ) by Federal judge Roger Benitez overturning a California firearms ban on assault weapons where he ruled it violates the Constitutional right to bear arms, his words, referring to the Second Amendment, I have a suggestion. In my thesis regarding the Second Amendment I think it will prove his ruling right to bear arms” has everything to do with a “militia” and nothing to do with a “person” or individual, which the following will suggest..
Justice Amy Coney Barrett Second Amendment dilemma
In some 225 years neither law professors, academic scholars, teachers, students, lawyers or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of Second Amendment of the Constitution. I had taken up that challenge allowing Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment.
I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment states, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Militia, a body of citizens organized for military service.
If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self)
The 4th Amendment reminds us, “The right of the people to be secure in their persons….”
The Article of Confederation lists eleven (11) references to“person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do.
It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.”
Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person?
Justice Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero reference to “person/s. Justice Barrett’s view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment.
Leaving Supreme Court Justice Barrett’s judgment in question.
In the entire U.S. Constitution “militia” is mentioned 5 times. In these references there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia.
Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must ..
And interestingly, the word “shall” appears in the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.”
“[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another;
The condition “Infringe” has put a stop as to any counter thoughts regarding the Second Amendment, as you shall not infringe or encroach on beliefs other to what is evident as to the subject “Militia.”
Finally, clarifying “..the right of the people to keep and bear arms…
People. Human beings making up a group or assembly or linked by a common interest.
In closing, I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink.
William Heino Sr
I’d suggest reading the text of the Heller decision again…
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[…] Meanwhile, in other California war against guns news, various challenges to various California gun law are pending an en-banc hearing on Duncan v Bonta. (Previously.) […]
[…] Meanwhile, in other California war against guns news, various challenges to various California gun law are pending an en-banc hearing on Duncan v Bonta. (Previously.) […]
[…] Meanwhile, in other California war against guns news, various challenges to various California gun law are pending an en-banc hearing on Duncan v Bonta. (Previously.) […]
[…] Meanwhile, in other California war against guns news, various challenges to various California gun law are pending an en-banc hearing on Duncan v Bonta. (Previously.) […]
[…] Meanwhile, in other California war against guns news, various challenges to various California gun law are pending an en-banc hearing on Duncan v Bonta. (Previously.) […]