Judge Benitez: Miller v. Becerra, AR15 Rifles
ARE Protected by Second Amendment!
(The rationale behind the decision)
By Dean Weingarten. June 27, 2021
Article Source
On June 4th, 2021, in the Southern District of California, Judge Roger T. Benitez found the complex regulatory scheme of California gun laws that outlaw the ownership of "Assault weapons", particularly semi-automatic clones of the AR-15, are unconstitutional violations of the Second Amendment on their face.
Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. 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, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.
Plaintiffs challenge a net of interlocking statutes which impose strict criminal restrictions on firearms that fall under California's complex definition of the ignominious "assault weapon." Hearings on a preliminary injunction were consolidated with a trial on the merits pursuant to F.R. C.P. Rule 65(a)(2). Having considered the evidence, the Court issues these findings of fact and conclusions of law,1 finds for the Plaintiffs, and enters Judgment accordingly.
This is the opening salvo in a tightly worded and beautifully constructed 94 page decision by Judge Roger T. Benitez. This correspondent will lead the reader through a modest sampling of the decision, so those who do not wish to read the entire decision will not need to do so. Reading the entire decision is highly recommended.
Judge Benitez demolishes the argument that AR-15 style rifles are "unusual" on page 2:
This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned "assault weapons" are not bazookas, howitzers, or machine guns. 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.
He shows how silly it is to ban a rifle for features that make it more accurate on page 8:
The mechanical design features that identify a rifle as a California "assault weapon," it is argued, tend to help a person shoot the rifle more accurately under pressure. The Plaintiffs make the point that this is a better condition for all lawful uses, i.e., a more accurate gun is better for everyone. After all, responsible gun-owners worry about the ending point of every round fired. If shooting in self-defense, a home defender wants every round to hit only attackers.
In contrast, the Attorney General argues that better accuracy makes it a more dangerous weapon.
The Judge cites the Caetano decision, where the Supreme Court unanimously held the Second Amendment protects modern weapons on page 10L
The Second Amendment protects modern weapons. Caetano v. Massachusetts, 577 U.S. 411, 412 (2016). The firearms banned by California Penal Code § 30515 and deemed "assault weapons" are modern weapons. They are principally AR-15 type rifles, pistols, and shotguns. Plaintiffs and others refer to them as "modern sporting rifles" although they are clearly useful for more than just sport.
He shows the clear inclusion and protection of militia weapons by the Second Amendment on page 11:
Although the Attorney General sees it differently, the Supreme Court also recognizes that the Second Amendment guarantee includes a right to keep and bear firearms that have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." Miller, 307 U.S., at 178. Miller implies that a weapon that is commonly owned and that is useful for the common defense for a militia member is also protected by the Second Amendment.
Judge Benitez shows how common modern rifles are in the United States on page 15:
Nationally, modern rifles are ubiquitous. In 2018 alone (the most recent year with data), 1,954,000 modern rifles were manufactured or imported into the United States. Over the last three decades, 19,797,000 modern rifles have been manufactured or imported into the United States and the numbers have been steadily increasing.
He shows the California "assault weapon" ban was flawed from the start on pages 24-25.
Moving through the trial record here, it becomes clear that AWCA's assault weapons ban-by-prohibited-features was not designed to address a real harm, and even if it did, does not alleviate the harm in a material way. Guiding the intermediate scrutiny path are some checkpoints.
On page 26, he shows it is the government which bears the burden of proof when it attempts to limit a fundamental Constitutional right:
The presumption in favor of rightfully possessing a citizen's arm was made during the adoption of the Second Amendment. The government may carry its burden in a myriad of yet undefined ways, but it is the government's burden to bear.
On page 28, he shows the idea that some weapons can be banned because others are allowed, is a flawed and silly argument with no stopping point:
The problem is that the alternatives-remain argument has no limiting principle and would justify incremental firearm bans until there is only a single-shot derringer remaining for lawful self-defense. 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.
Judge Benitez unequivocally shows AR-15 rifles are used for defense on page 34:
Without question, there is clear evidence that AR-15 rifles are and have been used for self-defense.
He shows the state contradicts itself in its claims about accurate fire on page 39:
Accuracy is very important for self-defense because a civilian is accountable for every round he fires. If he misses the attacker, he will hit something he did not intend to hit, which may be an innocent bystander.61 The State does not dispute the importance of accuracy alone for self-defense.62
Does the state want rifles that are less accurate? No and yes . The State wants rifles that are less accurate during rapid firing because rapid firing, it is claimed, correlates with criminal use. And there is no need for rapid firing for self-defense, according to the Attorney General.
On page 44, Judge Benitez explains the state cannot restrict a right merely because some arms are used more commonly in some crimes:
In other words, if modern rifles are misused in crime(even disproportionately), government must deal with those wrongful acts directly; it may not deal with the problem by suppressing the rights of law-abiding citizens to have modern rifles for lawful uses. Thus, disproportionality is not a valid constitutional concern. Common ownership by law abiding citizens for lawful purposes is the test. Moreover, there is little evidence that modern rifles are used disproportionately in crime.
Then, in a series of arguments starting on page 47, he shows how the claim that AR-15 rifles are more commonly used in a crime is not correct:
Koper concludes, "while some surveys suggest that ownership and, to a lesser extent, use of AWs may be fairly common among certain subsets of offenders, the overwhelming weight of evidence from gun recovery and survey studies indicates that AWs are used in a small percentage of gun crimes overall."76 Koper's conclusions comport with the ATF firearm tracing report from 2019.
Recall that to pass intermediate scrutiny, AWCA must have at least been designed to address a real harm and alleviate the harm in a material way.Turner II, 520 U.S., at 195. The evidence described so far proves that the "harm" of an assault rifle being used in a mass shooting is an infinitesimally rare event. More people have died from the Covid-19 vaccine than mass shootings in California. Even if a mass shooting by assault rifle is a real harm, the evidence also shows that AWCA's prohibited features ban has not alleviated the harm in any material way.
On page 53, Judge Benitez shows how useful a modern rifle is, merely by its presence:
On the other side, a fully loaded modern rifle is surely a powerful psychological criminal deterrent. Simply brandishing such a weapon may cause an intruder to flee precisely because it appears to be dangerous and fully loaded. It is difficult to imagine the same psychological effect on a home invader (or two invaders) from brandishing a 2-shot derringer.
On page 59, the Judge shows how other firearms were used in the vast majority of the crimes the state claims would be reduced by banning AWs.
Analyzing the list of 161 national events, Allen finds that 78% of mass shooting events did not involve an assault weapon. Put differently, across the U.S. only 22% did involve an assault weapon.115 Her opinion comports with other evidence in the record. Professor Mark Gius reports even less frequent use of assault rifles in mass shooting events.116 Gius says, "[c]ontrary to popular belief, however, assault rifles were not the predominant type of weapon used in these types of crimes. In fact, according to a recent study, handguns were the most used type of firearm in mass shootings (32.99% of mass shootings); rifles were used in only 8.25% of mass shootings."117
On page 60, he shows how the ban in California is a failure:
From Allen's list of mass shooting events, it is reported that in California there have been 25 mass shooting events over approximately 40 years.118 How well has the California ban on assault weapons worked? Before AWCA, twice in a decade, an assault weapon was used in a mass shooting. On average, since AWCA, twice a decade, an assault weapon was used in a mass shooting.119 The assault weapon ban has had no effect. California's experiment is a failure.
On page 64, he notes that AR-15 type rifles are lower-powered than many common rifles:
A modern rifle like the AR-15 platform rifle typically uses lower power cartridges than either military rifles or hunting rifles.
On page 69 the judge states what has become obvious from the research:
Put simply, the evidence indicates gun bans are in effective at reducing gun crimes.
Then Judge Benitez starts taking apart the wrong decisions in other circuits which have been hostile to the Second Amendment, on page 70:
In the past, Second Amendment cases were wrongly decided by following a majority of circuit courts down the wrong path.
He shows how the California government has infringed on Second Amendment rights on page 75:
Today, the Attorney General goes beyond N.Y. State Rifle & Pistol and suggests that intermediate scrutiny should permit a class-wide ban on extremely popular assault rifles, assault shotguns, and assault handguns, in addition to an existing ban on buying any handgun not found on a shrinking list under California's "handgun roster" of "safe" handguns, because some alternatives remain. This is too far.
On page 77, he explains how the other circuit decisions do not apply because they were deficient in various ways:
None of the out-of-circuit decisions comfortably fit this case. None of the cases went to trial. None of the cases had substantial evidence that AR-15 type rifles are useful and used by law-abiding citizens for lawful purposes like home-defense and sporting competition. None of the cases considered an AR-15's militia use. None of the cases scrutinized a statute like California's § 30515 that bans assault rifles, assault shotguns, and assault pistols, while at the same time prohibiting the sale of all potentially alternative handguns not included on the State's shrinking handgun roster.
He shows there is no logic to the AW ban. It has to have a real purpose to restrict Second Amendment rights, yet the ban does not make sense, on page 80:
The point is that most of what the Attorney General says are dangerous features on a prohibited modern rifle are also features on a Second Amendment-protected semiautomatic pistol. The Ruger Mini 14 is not banned by AWCA but it is capable of shooting the same ammunition, at the same speed, with the same type of large capacity magazines, as an AR-15.
On pages 80-81, he puts forward the reasons the AR-15 type rifle is protected as a militia weapon:
Banning the Ideal Arm for Militia Use Fails Intermediate Scrutiny
The Attorney General does not address or acknowledge whether the ban also imposes a burden on the Second Amendment right to own a firearm that is the ideal weapon for use in the militia. If the modern rifle is the ideal weapon, which it is according to the testimony of General Youngman, then the ban forces a choice of a less-than-ideal weapon for militia use.
On page 84-85, the expert testimony for the militia argument is explained:
Youngman's testimony is uncontroverted. Youngman is very well qualified to opine on the usefulness of an AR-15 for militia use. He has served in the regular army and the army reserves. He served as Kentucky's Adjutant General commanding the state's national guard. He is a firearms trainer and armorer. He was a member of the bar and worked as a prosecutor. His opinion that an AR-15 is an ideal firearm for use in a militia is unequivocal and uncontested. Of the prohibited features in § 30515(a), most are important for militia use.
On page 85, the protection of militia weapons is directly tied to Supreme Court precedent in the Miller case from 1939:
But Miller held that it is precisely this type of firearm – a firearm that has a reasonable relationship to militia service — that is protected by the Second Amendment. It is a principle that Heller grasped. "This holding [of Miller] is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that 'have some reasonable relationship to the preservation or efficiency of a well regulated militia'").
On page 87, he categorically declares the AR-15 in particular, and militia weapons in general, are protected by the Second Amendment:
The evidence is clear, however, that the AR-15 type of modern rifle bears a reasonable relationship to the preservation and efficiency, as well as the effectiveness, of a modern well-regulated militia. It is therefore categorically protected by the Second Amendment.
On page 92, Judge Rodger T. Benitez sums up the rationale for the Second Amendment as valid today as it was in 1791. It is beautifully done:
There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants and terrorists are dangerous; guns in the hands of law-abiding responsible citizens are better. To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear firearms commonly owned and kept for lawful purposes. In early America and today, the Second Amendment right of self-preservation permits a citizen to "'repel force by force' when 'the intervention of society in his behalf, may be too late to prevent that injury.'" Heller, 554 U.S., at 594. Then, as now, the Second Amendment "may be considered as the true palladium of liberty." Id. at 606 (citation omitted).
This is a remarkable and long-awaited Second Amendment decision. It will now be appealed to a three-judge panel of the Ninth Circuit.
It is impossible to know how they will respond
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
©2021 by Dean Weingarten