UPDATE: March 20, 2020. I learned, in a Facebook dust up with a respected former law colleague, about a 2016 U.S. Supreme Court per curiam decision, after Scalia's death, that effectively overrules the analysis in this post. See here. I thereafter went back to Judge Benitez's opinion, discussed below, and I am amazed he does not see what I am analyzing. He is going on the misreading of Heller that the per curiam decision does without even realizing it.
With the significant number of judges the Bush-Cheney and Trump administrations, together with Republican-dominated Congresses, have pushed onto the federal court bench, we have to wonder whether we are in for some really bad interpretations of our nation's Constitution. One such interpretation and ruling, from Bush/Cheney appointee Roger Benitez, concerned CA's Proposition 63, which was a State law including a ban on owning gun magazines capable of firing more than ten rounds. Judge Benitez, citing a few dissenting--not majority--opinions, and admitting how he read the Internet to find news articles about people defending themselves in home invasions, which articles and examples neither party had cited, all without bothering to care whether the people defending themselves needed more than ten rounds, has now held, on Friday, March 29, 2019, the State law unconstitutional.
With the significant number of judges the Bush-Cheney and Trump administrations, together with Republican-dominated Congresses, have pushed onto the federal court bench, we have to wonder whether we are in for some really bad interpretations of our nation's Constitution. One such interpretation and ruling, from Bush/Cheney appointee Roger Benitez, concerned CA's Proposition 63, which was a State law including a ban on owning gun magazines capable of firing more than ten rounds. Judge Benitez, citing a few dissenting--not majority--opinions, and admitting how he read the Internet to find news articles about people defending themselves in home invasions, which articles and examples neither party had cited, all without bothering to care whether the people defending themselves needed more than ten rounds, has now held, on Friday, March 29, 2019, the State law unconstitutional.
In reading his conclusion, I was shocked to see how Judge Benitez actively misread the U.S. Supreme Court decision in D.C. v. Heller, 554 U.S. 570 (2008), and used that misreading as the legal lynchpin for his decision. Let's first look at the Heller decision and we will see what I mean. In Heller, after Justice Scalia, speaking for a mere five member majority, went through the history of gun ownership laws in British as well as pre-American Constitutional history--which I always found funny because Scalia talked about how wrong it is to rely on history rather than simply reading the text--then wrote Section III of the Heller decision, which walked back much of the NRA-style arguments one hears all over corporate broadcast media, and among our family members and friends who adore their guns. I think it is vital for every American who has any interest in this issue to read the following three paragraphs from the Heller decision (I have removed the citations for the most part so as not to burden non-lawyer readers):
"III
"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues...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 imposing conditions and qualifications on the commercial sale of arms.26 (Footnote 26 states: 'We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.')
"We also recognize another important limitation on the right to keep and carry arms. Miller said (MF Blog, the Sequel note: Miller is a 1938 US Supreme Court decision which held sawed off shotguns may be banned without offending the 2nd Amendment), as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U. S., at 179 (MF Blog, the Sequel added the bolding). We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'...
"It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."
What I find amazing about Heller, compared to how the decision is portrayed in political discourse on corporate broadcast media, is the Heller decision is clear that many things we think of as "common sense" gun control laws, i.e. keeping guns out of hands of felons, mentally ill, and the like; background checks; limits on owning AR-15s (as M-16 rifles are a descendant of AR-15s, first created in the 1950s); and closing gun-show loopholes, etc. are all appropriate topics for government regulation without doing any offense to the 2nd Amendment. I am fine arguing over whether passing such gun control legislation is good or bad public policy. However, we should not be misled into thinking such laws are categorically against the 2nd Amendment--at least not in the history of the jurisprudence of the U.S. Supreme Court on the matter.
So why was I so shocked at Judge Benitez's opinion? Well, here is Judge Benitez, getting to the legal lynchpin in his decision, after running through news articles and citing, multiple times, dissenting opinions from some of the most right-wing judges ever to ascend to the federal bench:
"I. The Supreme Court's Simple Heller Test
"In Heller, the U.S. Supreme Court provided a simple Second Amendment test in crystal clear language. It is a test that anyone can understand. The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual 'in common use' 'for lawful purposes like self-defense.' District of Columbia v. Heller, 554 U.S. 570, 624 (2008)."
Um, Your Honor, when you cited the phrase "in common use" from Heller, you left out the words "at the time" of the amendment being enacted in 1791. And here is Dave Kopel, a University of Denver law school professor, and ardent pro-gun guy, explaining that more than eight rounds were decidedly not "in common use" in 1791.* This is a judicial version of....Oopsy.
Judge Benitez then goes to cite the phrase "common use" another eight times, seven of which times he fails to use the entire phrase "in common use at the time." He only cited the full phrase once, when citing a 7th Circuit case, but with no comment as to the vast difference in scope between how he is using the partial phrase "in common use" and the full phrase, which includes the words "at the time" of the enactment of the 2nd Amendment in 1791. This is as bad a failure of reading comprehension I have seen in a long time from a person wearing a judge's robe, and the judicially snarky wording Judge Benitez used to precede his misreading of Heller--telling us Heller provides a "simple test" and that the words are "crystal clear"--makes me wonder if Judge Benitez is really engaging in a legal version of bomb-throwing. Yes, Your Honor, the passage in Heller is "crystal clear" and "simple," which means a law which prohibits owning a gun with more than ten rounds is permissible under the 5-4 Heller decision interpreting the 2nd Amendment, which majority opinion remains the most pro-gun ownership decision in U.S. Supreme Court history.
CA's statutory law is, therefore, not unconstitutional under any U.S. Supreme Court precedent, as it was decidedly not "common" in 1791 for people to have more than ten rounds of ammo in their guns. If, again, we want to argue, from a legislative or policy basis, i.e., whether we should pass a law which restricts an individual to ten rounds of ammunition, then I am more than fine with that. I think one may make a reasonable case for having more than ten rounds, though, as Judge Benitez says, at page 7 of his decision, "Few would say 100 or a 50-round rifle in the hands of a murderer is a good idea." That, again, is about legislators drawing public policy lines. It is not the type of argument one often makes when engaged in a broad analysis deciding what is or is not permissible under our nation's Constitution, unless the burden is significant or extreme. And, again, Miller and Heller both say the 2nd Amendment's prohibition on private gun ownership is about what was "in common use at the time," 1791, not "common use" generally and through today, as we humans have advanced our weaponry technologies to a catastrophically deadly level. That is also what makes Scalia's opinion in Heller significant, where he speaks of the very large difference in power between the government and individuals in the 21st Century, but say, tough luck, 2nd Amendment proponents: You are stuck with weaponry "in common use at the time."
Judge Benitez's decision is an advocate's brief posing as a court opinion, and I say this as a person who believes there is a constitutional right for an individual to "bear arms" under the 2nd Amendment, notwithstanding the prefatory language regarding a "well-regulated militia." The question now is what we may expect to see in the appellate courts. My speculation is the 9th Circuit Court of Appeals will overturn Judge Benitez's decision. However, what the U.S. Supreme Court will do is less certain. The U.S. Supreme Court may deny a writ of certiorari, meaning the Supreme Court may refuse to hear the petition, and leave the anticipated 9th Circuit overturning of Judge Benitez intact. If, however, the Supreme Court agrees to hear the case, there is a strong chance four Supreme Court justices (Thomas, Alito, Gorsuch, and Kavanaugh)** are ready to uphold most of or all of Judge Benitez's decision. In doing so, the question is whether Chief Justice Roberts is willing to upset his wife, and the orbit of friends he has long had in the D.C.-area, by overruling Heller's and Miller's holding that the 2nd Amendment only protects against seizure of guns and ammunition "in common use at the time" the 2nd Amendment was enacted. My belief, again rank speculation, is Roberts is not willing to overturn that precedent, and the vast majority of Americans will be able to breathe a sigh of relief.
As court watchers have noted, too, Clarence Thomas has had a habit of standing alone, wanting to grant "cert"--court watcher "speak" on that one--on background check laws various states are enacting in recent years. I find it significant no other justice, not Gorsuch, not Alito, not Roberts, has joined him. See here for one of Clarence Thomas' stand-alone opinion wanting to challenge CA's background check law, complete with a misunderstanding about why an abortion law with a 24 hour waiting period was deemed too burdensome--it was because there was only one abortion clinic in the state, and of course, the longer one waits to decide on an abortion, the more likely "viability" will occur such that an abortion may no longer be had. There is, in my near-old-man's view, not only a deficit of reading comprehension among the current elite in the United States, but also a deficit of understanding of how analogies work. Contrary to Clarence Thomas, one may say, with a bit of wit and more snark, "Praise the Lord and Pass the Ammunition" is an amusing, though culturally awkward, song from World War II, but it is not constitutional precedent. And, really, even that song was in the context of a formal military, not a "well-regulated" citizen-militia, fighting foreign enemies which had declared war against, or outright attacked, our nation. I long wondered at the title of the song, long in the parlance of a certain element in our still largely culturally Christian American society, as Jesus was mostly of the "turn the other cheek" philosophy that sounds more in pacifism than using a gun for God. Also, one wonders why this use of human-made items, i.e. ammunition, is divinely necessary, when there is a Venn diagram overlap among those who believe in that phrase and, somehow, decide a rape victim's pregnancy is God's will, and no medically-safe abortion should intervene. See? That's how one uses an analogy. :) I know, I know. The fetus is a baby and it is taking a life. Well, that is a philosophical question people may disagree about, but our Founders talked about "persons" and "people" in the sense of people who are already born, and they were not concerned with protecting fetuses. As I often say, abortion is best seen as something in which one may wish to re-examine one's priorities before deciding to ban the procedure.
Oh well. Judge Benitez has lit a fuse in the bomb he has thrown from the bench.
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*Here is Professor Kopel on Judge Benitez's decision, where Kopel, too, falls victim to Judge Benitez's misreading of Heller about "in common use" that fails to add "at the time." I was disappointed to read Kopel's drive-by reaction because I respect Dave Kopel's legal analyses regarding the 2nd Amendment, even where I may disagree with him. Professor Kopel should have re-read the passage in Heller before publishing his drive-by reaction.
** Judge Benitez, at two points in his opinion, ingratiatingly cites now-Supreme Court Justice Brett Kavanagh's dissenting opinion in the Heller case, from when the case was at the D.C. Circuit level. This is a transparent attempt to signal Judge Kavanaugh, though one wonders if Judge Kavanaugh, as someone long in the D.C. area, is really ready to allow undiagnosed mentally ill people all around the nation to legally get their hands on magazines holding more than ten rounds. I really do think the justices should be compelled to watch Jim Jeffries' sixteen minute comedy routine on the Second Amendment and guns. As I often joke with friends, Jeffries' bit is as good a legal amicus brief I have ever encountered on the subject of guns. When I asked two very sharp and knowledgeable lawyer colleagues, who own and love their guns, to watch it, and tell me how, factually and philosophically, they rebut Jeffries' arguments, they have gamely admitted Jeffries makes the case the best argument for gun owners is "I like my guns."
And we do not even have to go into the largely, though not fully, correct, view that the 2nd Amendment has been, in effect, a "white man's" right. Nor do we need to go into how, in the McDonald decision in 2010, the U.S. Supreme Court applied the 2nd Amendment right to the States and local governments, and at least impliedly reversed the 1876 Cruikshank decision, which had allowed for guns to be taken from African-Americans, and held the 2nd Amendment only applied to the federal government. Here is the crux of Cruikshank, from nearly 150 years ago, which shows just how much has changed in a certain element of elite understanding of the 2nd Amendment, at 92 U.S. 542 at page 553:
"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States."
Hmmm.....I think we should not be too harsh against those who note the racial element in all of this pro-gun ownership extremism in our time, when those who are most extreme about their guns are white males of a certain age--and gun ownership has declined to a point where 3% of Americans own half the guns in the nation, at least as far as statistical analysis of lawful gun ownership allows us to say. Again, the race element in the debate over guns may sometimes be overstated, and should be cautiously identified when analyzed within a judicial perspective. However, the color line, as Frederick Douglass and W.E.B. DuBois cogently identified, exists throughout American history and constitutional jurisprudence and must, therefore, not be ignored, even when deciding a case of constitutional or statutory import.
