Will the California Assault Weapons Ban Survive?

On June 4, 2021, in Miller v. Banta—a case filed by an individual and several gun rights organizations against the State of California—Judge Roger T. Benitez of the Federal United States District Court in San Diego ruled that California’s ban on the sale and ownership of assault weapons was unconstitutional under the 2nd Amendment of the United States Constitution. The judgment has been appealed to the Ninth Circuit Court of Appeals by the State of California. The California ban will remain in effect at least until the Ninth Circuit Court reaches decisions in two other cases pending before the Ninth Circuit, one which also challenges the constitutionality of the California assault weapons ban, and one which challenges the California ban of magazines holding more than ten rounds of ammunition. The constitutionality of California’s assault weapons bans and other states’ similar assault weapons restrictions could be determined by a final decision in this case by the US Supreme Court.

In 1989, California banned the ownership and sale of over 50 specific brands and models of semi-automatic firearms, which the California statutes classified as assault weapons. Most were rifles, but some were pistols and shotguns. California was the first state in the nation to ban assault weapons after a shooting at Cleveland Elementary School in Stockton, California in which five children were killed and 29 others were wounded. The law has been amended several times to add features-based definitions of assault weapons to prevent gun manufacturers from producing functionally identical firearms to the ones that were already banned by model. The California laws were also amended to ban the sale of magazines that could hold more than ten rounds of ammunition.

Among the weapons and the features banned are the AR-15 series of semi-automatic rifles and its accessories—the weapon of choice used in the most violent and notorious recent mass shootings—including the movie theater shooting in Aurora, Colorado in 2012, the shooting at the Tree of Life Synagogue in Pittsburgh, Pennsylvania in 2018, the shooting at the San Bernardino County Inland Regional Center in San Bernardino, California in 2015, the shooting at the country music festival in Las Vegas, Nevada in 2017, the shooting at the Pulse nightclub in Orlando, Florida in 2016, the shooting at Marjory Stoneman Douglas High School in Parkland, Florida in 2018, and the shooting of first-graders at Sandy Hook Elementary School in Newton, Connecticut in 2012. Judge Benitez’ opinion claims that its interpretation of the law relies primarily on the Supreme Court’s interpretation of the 2nd Amendment in District of Columbia v. Heller, a 2008 case which held that the District of Columbia’s restrictions on the ownership of handguns was unconstitutional. The Heller opinion ruled that the right to own firearms is not limited by the language of the 2nd Amendment’s reference to militias, and further ruled that under the 2nd Amendment, a state cannot ban weapons that are commonly owned and used by law-abiding citizens for lawful purposes.

Judge Benitez’ opinion relies upon several questionably-factual determinations based entirely on statistics and studies offered by the plaintiffs (gun rights organizations), including the factually incorrect assumption, not based on any evidence, that the overwhelming majority of AR-15 weapons are owned and used by law-abiding citizens for lawful purposes, such as self-defense and the protection of a person’s home. His opinion further concludes, without any factual support and by ignoring the recent history of mass shootings, that ” the ‘harm’ of an assault rifle being used in a mass shooting is an infinitesimally rare event,” and that, “More people have died from the COVID-19 vaccine than mass shootings in California.” Benitez’ opinion also reached the factually unsupported findings that California’s assault weapons ban and the former Federal assault weapons ban were not successful and the California ban was a “failed experiment.”

Several academic studies have found that the federal assault weapons ban effectively reduced mass shooting fatalities by as much as 40%, that more than 85% of mass shooting fatalities were related to the use of assault weapons, and that California, despite being the most populous state, had the seventh-lowest fatality rate in the country due to gun violence during the period of the assault weapons ban. Judge Benitez’ opinion conveniently ignores numerous facts, statistics, and studies that discuss the relatively large percentage of AR-15 weapons used in mass shootings, such as a recent Newsweek investigative report finding that of the last 80 mass shootings in the US, 26% involved the use of AR-15 rifles. Other data compiled by the Gun Violence Archive (a non-profit online archive of gun violence incidents collected from law enforcement, media, government, and commercial sources) found that during the last five years, assault weapons were used 2.7 times more often to perpetrate mass shootings than were used defensively against any type of attack.

According to Judge Benitez, the 2nd Amendment prevents a state from banning assault weapons if any percentage of its use is for a “lawful purpose,” such as self-defense, even when a weapon such as an AR-15 is often owned and used for unlawful purposes (such as mass shootings resulting in numerous deaths and injuries). The Benitez opinion rejects any argument that the court must consider the relative percentages of lawful versus unlawful use of a weapon to determine if it can be banned, and instead holds that a weapon cannot be banned according to the 2nd Amendment, if some percentage of its use is for a lawful purpose, even in the face of substantial evidence that the weapon is often owned and used for unlawful purposes, such as mass shootings.

“In other words, if modern rifles are misused in crime, even disproportionately, the 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.”

Judge Roger T. Benitez

Although Judge Benitez’ claims that his opinion follows the interpretation of the 2nd Amendment in District of Columbia v. Heller, the opinion completely ignores the following section of the Heller opinion which acknowledges that some limits on gun ownership are constitutional.

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws conditions or qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms … that the sorts of weapons protected (by the 2nd Amendment) were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

District of Columbia v. Heller

The Benitez opinion further ignores the differences between the AR-15 weapons that are the subject of the Miller Case and the handguns which were the subject of the Heller Case. Those handguns were non-military weapons commonly used for self-defense, whereas the AR-15 is essentially a modification of a weapon designed for the military for solely military purposes. The Heller Court recognized this distinction and confirmed that restrictions or bans on the ownership of military weapons are not protected by the 2nd Amendment. (“The term ‘arms’ as used in the text of the 2nd Amendment was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”)

This decision overturning the assault weapons ban has spurred outrage across the country. Governor Gavin Newsom, in announcing California’s appeal, said that California would never “ … let these weapons of war back onto our streets … This is a fight California will never back down from, period.” Supporters of gun restrictions are concerned that Judge Benitez’ decision was part of a strategy by the gun rights organizations to get cases to the US Supreme Court, where appointees by former President Trump are seen as sympathetic to 2nd Amendment arguments.