Federal District Judge Roger T. Benitez’s June 4 ruling striking down California’s “ban” on so-called “assault rifles” has evinced reactions among pop media figures and from Governor Gavin Newsom (D) that are worth dissecting.
First, let’s dismiss the pat, and far-too accepted, line that this gun ban was a “ban” at all. Over, and over, history shows us that prohibition of things such as firearms or alcohol does not stop demand. Even when prohibitions are policed by a totalitarian state, demand for the “prohibited items” invites profitable supply to fill it, and people create alternatives that begin to filter through the black market. As a result, “bans” on guns don’t make them disappear. People with criminal goals will disregard a “ban” – as MRCTV’s Nick Kangadis reveals each time he reports on Chicago’s explosive murder rate.
Second, in Western philosophy, there is a distinction between Natural Law, and statute. Natural Law pertains to Natural Rights, set down by God, or, if one is atheistic or agnostic, discernable from human nature. Natural Law reveals that men and women own themselves and what they peacefully acquire, and they have a natural right to be left alone. This carries with it the right to self-defense.
State “laws” are better known as statutes. The existence of the state is an attack on Natural Law because all states demand the seizure of your money through taxation to fund them. Beyond that, the state can only make things worse as it passes more and more statutes – especially so-called “bans” that threaten people who might want to peacefully acquire a firearm and use it for self-defense.
District Judge Benitez’s decision covers the case “James Miller et al v Bonta, Atty Gen of California”, a case filed in 2019 in which the plaintiffs -- James Miller, Patrick Russ, and Ryan Peterson -- argued that so-called “assault weapons” are protected under the Second Amendment and that California’s 1989 prohibition against those weapons, and subsequent expansion, were infringements of the Second Amendment.
Which is incontrovertible, since so-called “assault weapons” are arms, and the Second Amendment overtly states, “…the right to keep and bear arms shall not be infringed.”
Judge Benitez agreed, opening his decision with:
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.
This made numerous media figures go apoplectic.
On MSNBC, “Morning Joe” co-host Mika Brzenzski breathlessly exhibited shock, and immediately called in Palm Beach County’s State Attorney, Dave Aaronberg, to harmonize with her in the cataleptic chorus. Aaronberg danced around the strict wording of the Second Amendment and the definition of the word “right”, and focused on the judge’s comparison of the AR-15 to a Swiss Army knife, expressing near loathing of the idea that Judge Benitez should compare “a weapon of war to something that campers use to unscrew wine bottles in front of a fire.”
Perhaps he forgot that the Swiss Army Knife is… a knife.
In London, just like firearms “bans” have not seen causal decreases in gun-related crimes, knife “bans” have not seen decreases in knife-related violence. In fact, even as violent gun crime rises in boroughs throughout London, knife crime also rises – in a city where Mayor Saddikh Kahn got his government to“ban” guns and ban publically-carried blades.
Mika didn’t mention any of this to tax-funded State Attorney Aaronberg.
In print, NBC’s Dennis Romero gave CA Governor Gavin Newsom and the man who lost in court, Attorney General Rob Bonta, plenty of space to reiterate their propaganda, first, quoting Newsom:
The fact that this judge compared the AR-15 — a weapon of war that’s used on the battlefield — to a Swiss Army Knife completely undermines the credibility of this decision and is a slap in the face to the families who’ve lost loved ones to this weapon.
Curiously, Newsom and NBC’s Romero did not bring up the fact that murderers use knives between four and five times more often to kill people than they use rifles. He also neglected to mention that knives are right behind all guns (particularly handguns) as the second most-used weapon to commit violent crimes in the US, they are the most common violent crime weapon in Canada, and they are the weapon most used to commit “youth murders” in the UK.
Indeed, the biggest “slap in the face,” to use Newsom’s term, is not Newsom and Romero’s omission of the fact that firearms are used more often as weapons of self-defense than as weapons of aggression, but their inability to acknowledge the reality that people have an inherent right to own them, no matter what a politician, or a judge, or anyone else, might say.
Staying “on message,” CA Attorney General Bonta, too, focused on the Swiss Army knife comparison, exploding with word shrapnel that distracted from the actual substance of the ruling.
’Today’s decision is fundamentally flawed, and we will be appealing it,’ Bonta said in a statement Friday night. ‘There is no sound basis in law, fact, or common sense for equating assault rifles with swiss (sic) army knives.’
All of which is incorrect. The Second Amendment makes no distinction about what arms all levels of government are forbidden from prohibiting. That fact and fundamental human rights dictate, therefore, that there is no distinction between a bazooka and a knife. Ownership of them is not an aggressive act. It is state agents -- who claim the power to arrest, fine, and imprison people for possessing arms -- who, inarguably, engage in aggression.
Sadly, on the most fundamental level, Judge Benitez doesn’t show Americans that he understands these axioms, either.
Similar to Bonta’s errant reference to statute as “law,” Judge Benitez relies on Supreme Court precedent, not the Second Amendment, for his ruling.
And, as I have warned since the day it was issued, the infamous 2008 “Heller” gun case saw then-Chief Justice Antonin Scalia correctly note that the right to keep and bear arms was an individual right. But, at the close of his opinion, Scalia claimed that no right is absolute – which was incorrect and destroyed the very definition of the term “right.” Rights are called that because they are, by definition, untouchable by the state. If they can be attenuated by the polis, they are NOT rights. In Heller, Scalia actually undercut all rights.
To close, let’s quote Judge Benitez’s ruling to see how reliance on “precedent”, rather than acting on principle and the wording of the Constitution have, once more, left the door open to gun grabs.
The Second Amendment ‘elevates above all other interests the right of law- abiding, responsible citizens to use arms in defense of hearth and home.’ Heller, 554 U.S., at 635. The Supreme Court clearly holds that the Second Amendment protects guns commonly owned by law-abiding citizens for lawful purposes. At the same time, ‘the Second Amendment confers an individual right to keep and bear arms . . . that “have some reasonable relationship to the preservation or efficiency of a well regulated militia.”’ Id. at 622. And although the Supreme Court cautioned that the Second Amendment does not guarantee a right to keep and carry ‘any weapon whatsoever in any manner whatsoever and for whatever purpose,’ Heller, 554 U.S., at 626, lower courts have often cited this proviso about extreme cases to justify gun laws in average contexts. There is no evidence that the Supreme Court intended that language to be a license to avoid its common sense holding in average contexts. Unfortunately, Heller’s acknowledgement of exceptions for gun laws at the extreme is in danger of swallowing Heller’s rule for the average case.
Clearly, Judge Benitez shows dissatisfaction with the Heller ruling and how it leaves room for future attacks on the right to keep and bear arms.
But – and this is the most important lesson to be derived from this ruling – the judge’s reliance on prior precedent is his own monumental error.
He swore an oath to uphold the US Constitution, not legal precedent. The Second Amendment of the Constitution is clear. More fundamentally, human rights speak to us through time.
The judge made the right decision for the wrong reason. It does not matter whether someone does or does not consider an AR-15 a “kind” of gun that is in popular use. The very act of distinguishing some arms from others for the purpose of “banning/permitting” them is Constitutionally forbidden and ethically unsound.
All the rest – all the Newsom rhetoric, TV spin, and references to Supreme Court precedent, are smoke and mirrors.
And it’s Judge Benitez’s sworn responsibility to see past them, and act accordingly.