Ethics (And Judicial) Hero: Federal Judge Roger Benitez


If one bothers to read his opinion, which most anti-gun, anti-Second Amendment zealots will not, including your outraged friends on social media, it is clear that that the U.S. District Court for the Southern District of California judge’s long overdue ruling striking down the state’s three-decade-old unconstitutional ban on so-called “assault weapons” is well reasoned, well-researched, and difficult to rebut. As usual, those who want to remove the right to bear arms from law abiding Americans (while law-defying Americans continue to do as they please) are resorting to emotion and dishonesty to argue their case.

It is unfortunate that the judge, who is not one of those evil Trump judges but a moderate appointed by President Bush II, began his opinion with an invitation to be misquoted and misunderstood. “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment,” Judge Benitez wrote, so furious would-be gun-grabbers are aping California Governor Gavin Newsom, who tweeted,

“Overturning CA’s assault weapon ban and comparing an AR-15 to a SWISS ARMY KNIFE is a disgusting slap in the face to those who have lost loved ones to gun violence. This is a direct threat to public safety and innocent Californians. We won’t stand for it.”

This raises the question, so frequently encountered on Ethics Alarms, of whether a speaker is deliberately lying, or just stupid. In this case, it is also possible that he only read the first sentence, which is irresponsible. Benitez, as the rest of his opinion makes crystal clear, was comparing the versatility of an AR-15 to a Swiss Army Knife, not their characteristics as weapons. An important part of his opinion explains that when the California legislature banned semi-automatic rifles,it never even considered the weapon’s value for self defense, and not just as a “sporting rifle.” (The Red Sox have a utility player named Marwin Gonzalez, and I have heard him compared to a Swiss Army Knife because he can play almost any position; in other words, he’s versatile. No baseball writer has been so foolish as to mock the characterization by saying that the comparison is ridiculous because the knives aren’t alive, Gonzales isn’t Swiss, and he’s much, much bigger.) It is also a non sequitur to call a ruling based on black letter law a “slap in the face” to anyone. Not following the Constitution, as California frequently wants to do, is a slap in the face of democracy.

There are two main thrusts of the opinion. The first is a familiar one: what the anti-gun lobby calls “assault weapons” because it sounds scary are just modern rifles. “As an aside, the ‘assault weapon’ epithet is a bit of a misnomer,” the judge writes. “These prohibited guns, like all guns, are dangerous weapons. However, these prohibited guns, like all guns, can be used for ill or for good. They could just as well be called ‘home defense rifles’ or ‘anti-crime guns’.” Thanks to laziness or deliberate obfuscation by the news media and misinformation by resolutely ignorant pols like California’s Diane Feinstein, most of the public thinks that semi-automatic rifles, or “assault rifles,” are automatic weapons. They aren’t. The California law called semi-automatic weapons “assault-type” weapons to evoke images of military weapons and deliberately confuse the public. For anti-gun hysterics who shudder in terror at the sight of a toy gun in the hands of a six-year-old, this is especially effective.

The second main thrust is that the U.S. Supreme Court’s landmark holding in District of Columbia v. Heller, 554 U.S. 570 (2008) made the California law unconstitutional and a violation of the Second Amendment more than a decade ago. Judge Benitez writes, “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.” He then elaborates,

“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 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.”

Ah, but thanks to the propaganda, most Americans think “assault weapons” ARE machine guns. The opinion continues,

“One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter. Federal Bureau of Investigation murder statistics do not track assault rifles, but they do show that killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle. For example, according to F.B.I. statistics for 2019, California saw 252 people murdered with a knife, while 34 people were killed with some type of rifle – not necessarily an AR-15.2 A Californian is three times more likely to be murdered by an attacker’s bare hands, fists, or feet, than by his rifle.3 In 2018, the statistics were even more lopsided as California saw only 24 murders by some type of rifle.4 The same pattern can be observed across the nation.”

Moreover, the judge explains, when the California law was passed more than 20 years before Heller settled the issue, “most judicial thinking about the Second Amendment was incorrect. Prior to 2008, lower court opinions did not acknowledge that the Second Amendment conferred an individual right to own firearms, or that the right applied against the states.” He continues in part,

“In the year 1989, the California Legislature was not concerned with maintaining room for a citizen’s constitutional right to have a common firearm of one’s choosing to defend hearth and home. In making its policy choice, the California Legislature neither mentioned a modern rifle as a means of self-defense, nor did the core Second Amendment right appear to have been any part of its consideration. The formal legislative findings say nothing about self-defense…”

In short, subsequent SCOTUS holdings regarding the Second Amendment rendered California’s ban unconstitutional, and the law was misguided to begin with. The anti-gun activists are now savaging the judge and vowing to appeal, fight, and make mean faces, but the fact is that they are wrong on the law, and a professional, analytical judge finally struck down what had defied the Bill of Rights for over 30 years.

Read the whole opinion, which is wonderfully clear and lacking in legal jargon. Anyone should be able to understand it, which is why people like Newsom will rely on hysteria and misrepresentation rather than attempt to rebut what they cannot using logic and facts.

15 thoughts on “Ethics (And Judicial) Hero: Federal Judge Roger Benitez

  1. It was a satisfying verdict, but it will not end the controversy nor the continual push for some kind of a ban on assault rifles and other gun control measures. I’d be among the first to agree that some gun control measures are both appropriate and legal.
    With regard to these so-called assault rifles (they are not), I am willing to set aside the discussion of need vs. want and agree that there is no need, but that leaves some hard questions to be answered. I know that just asking these questions will lead some to conclude (wrongly) that I am a gun-lover; I’m not, although I enjoyed target shooting as a participant and as a coach. Some might conclude (also wrongly) that I believe nothing can be done.
    But I do believe these questions, and more, must be answered for there to be any progress. I also believe there needs to be agreement on terminology and definitions.
    First, and most important, what is the desired end result with regard to guns? If it is, as it often seems to be, no semi-automatic rifles in the hands of private citizens, then the following questions are important:
    Given existing Supreme Court rulings (c.f. Heller vs. District of Columbia 2008), how do we obtain the necessary Constitutional amendment to ban private ownership of semi-automatics? Or, could it be done by law, despite that ruling, as was done earlier (mostly) with automatic weapons? The key difference appears to have been the extent of private ownership — very little for automatic weapons so the ban was considered constitutional, versus extensive ownership of semi-automatic rifles (about 20 million or so now in private hands).
    Either way, how do we convince enough people to give up this right so that the law or amendment will pass and be observed?
    If a federal ban is not possible, could individual states ban private ownership of semi-automatic rifles? The Supreme Court decided in McDonald vs. City of Chicago (2010) that the 14th Amendment applies, and that rights protected by the Constitution cannot be infringed by the States.
    Seven states have laws banning ownership of semi-automatic weapons; are those laws Constitutional, or are they destined to go the way of California’s ban from several decades ago?
    Why do some hunters say they need semi-automatic rifles? Why are they wrong?
    Why do some home defenders say they need semi-automatic rifles? Why are they wrong?
    Suppose we convince enough people that there is no need and no right for private ownership of semi-automatic rifles, and we ban companies from making, importing, or selling such rifles, as was done in 1994. What do we do about the millions of such rifles already in the hands of private citizens? One politician has proposed a mandatory “buy-back.” Well, it’s not a buy-back because the government didn’t sell the rifles in the first place. If it’s mandatory, how is it to be enforced?
    Given that bolt-action, lever-action, and pump-action rifles and shotguns can produce a high rate of fire, not far less than semi-automatics, would we ban those also? Could we?
    Suppose we have resolved all of these issues and rifles are no longer much of a concern. Would we then pursue the elimination of private ownership of handguns, which, after all, account for the vast majority of homicides and suicides? If not, why not?
    Should we have gone after handguns first? Why are we focused on the so-called assault rifles?
    Is it racism that drives us to ignore the fact that about 7,000 blacks are murdered every year (about 50 per cent of all homicides), that about 94 per cent of the killers are black, and that the vast majority of these murders are by handgun? Or, is it simple politics, given that most of these murders occur in cities run by Democrats, and we cannot shine a bright light on their failures?
    Nearly 2/3 of gun deaths are suicide. Banning some types of weapons will have almost no effect on suicide. Shouldn’t our resources be applied to mental health issues rather than banning “assault” rifles?
    As indicated by the percentage of suicides and by an analysis of gun homicides, it becomes obvious that who is much more important than what – who is allowed to get a weapon is more important than what types of weapons are banned. So, shouldn’t our focus be on ‘who’?
    Should the focus be on partner and familial violence? About 2/3 of child murders are by a parent. About half of female murders are by a partner or spouse.
    Should the focus be on the war on drugs and and its relationship to gun possession/deaths?
    Should the focus be on poverty/hopelessness and the relationship that has to guns?
    I’m open to discussion of these issues with those who are interested, informed, and rational, but alas, I do not have good answers.

      • …[A]bout 7,000 blacks are murdered every year (about 50 per cent of all homicides), [and] about 94 per cent of the killers are black….

        Insofar as “we have to do something about gun violence,” why not ban black people?

        • You could say that abortion is a de-facto ban, as it very disproprtionately snuffs out black lives. No hue and cry about that, though.
          Black lives matter, but apparently most do not.

        • This is, of course, the taboo subject that the Democrats (and their pet media) can’t talk about. If a right-wing to extremist or an incel commits a shooting, there’s no problem highlighting the subculture, and its problematic relationship with violence. But when it’s African Americans, we can’t talk about the culture. You can barely talk about the perpetrators at all – it becomes simply “gun violence”. An alien species surveiling news in the United States might well walk away with the impression that murderous, fully autonomous guns stalk black neighborhoods, killing without any human intervention whatsoever.

  2. On a related note, I posted this.

    It is true that civilian doctors, in their personal capacities, are neither ethically, much less legally, estopped from commenting on issues of public concern. Nothing about their profession makes their opinions on the subject less- or more- worthy than plumbers or electricians or accountants.

    But they have no special expertise on laws that regulate who may own or possess firearms, nor regulating the time, place, manner of the bearing or shooting of firearms.

    This applies to other controversies regarding violent crime. To be sure, a doctor’s experience in treating gunshot wounds may, for example, be a big factor in his support for capital punishment for violent crimes. That does not mean his experiences nor his status has a doctor provides any extra weight to his arguments in support of capital punishment.

    Professional organizations are a different matter. They need to stay in their lane. Gun control laws- like the internal structure of neutron stars- are outside the subject matter of medical associations and journals.

  3. The judge’s decision in this case is definitely good news, not only for the “gun culture,” of which I am a near-lifelong member, but for all U.S. citizens, whether they realize and appreciate it or not. I guess I should add “as far as it goes.” While the judge aptly notes “These prohibited guns, like all guns, are dangerous weapons. However, these prohibited guns, like all guns, can be used for ill or for good” he goes on to curiously distinguish “machineguns” which one can assume from context he means to be all fully automatic firearms, as “dangerous and solely useful for military purposes.” Well of course they’re dangerous, they’re firearms! And by whose definition are they “solely useful for military purposes”? This is just as disingenuous as the term “assault rifle.”
    There are close to 650,000 legal “machine guns” (as defined by the BATFE) in circulation in the united states. Most of them are fully transferrable to anyone who can legally purchase a firearm, goes through the application process and pays the $200 transfer tax. [We have no idea how many illegal fully automatic weapons are out there, including (1) firearms legally purchased before the NFA in 1934, or firearms brought home as war trophies from WWI, WWII, or Korea, but never registered after GCA 1968, not to mention firearms illegally converted to fire full-auto.) I know a number of private citizens who legally own and shoot automatic weapons for recreation and in competition. These range from pistol-caliber submachine guns to .50 Browning M-2 heavy machine guns. (One of my friends can write your name on a target at 25 yards with his fully-legal HK MP9.) None of these folks are involved in military activities of any kind (unless you count waging war on their own bank accounts to buy ammunition). Although I have never personally owned a full-auto weapon, I was issued both a M-16 and a National Match M-14 rifle when I was a law enforcement officer, and fired other fully-automatic weapons for familiarization purposes. Our entire SWAT team was issued fully-automatic rifles and/or submachine guns. So it is -at least- a gross exaggeration to categorize all fully-automatic small arms as “solely useful for military purposes.” Plus, even if true, citizens right to keep and bear “weapons of war” would logically extend to fully automatic small arms of a type useful to a “well-regulated militia” in the current era (I am not advocating a right for individuals to “keep and bear” artillery, AC-130 gunships or nuclear weapons.)

    • And I will add to that: exactly four (4) violent crimes have been committed with machine guns since the NFA act. A full-auto weapon, unless it is crew-served and used as an area/base-of-fire weapon, really has very little utility for making dead people. Remember firing the M-16 and M-14 with the fun-button on (usually to get rid of excess ammo at the end of quals)? Not very many rounds on target, right? Maybe 1 or 2 per burst. Give me a bolt-action M-40 (a sniper rifle for the uninitiated), or a .300 Win. Mag. from Wal-Mart, and I would be much more dangerous to more people than I would with just about any machine gun. But this is all gun-nut jargon: it’s how it goes down in the movies that counts.

      • Exactly! Facts don’t matter. Same same with “silencers,” very little to no actual criminal use, and they don’t “silence” anything other than subsonic ammo. On the M-14, I once won a bet at our SWAT qualifications that I could keep all 20 rounds on the target at 25 yards on full auto. I unhooked the sling from the butt end, extended it to a length I had predetermined, and stood on the “loose” end while firing. All 20 rounds were on the paper, and about half of them in the black. All of our M-16s were A2 models (“loaned” by the DoD) with the 3-round-burst fire control groups. Much easier to control. My go-to rifles are my M1A Scout Squad, my .308 CMP Special M-1 Garand and my primary bolt gun, my old reliable Savage 10FP .308. I once fired a 4.75″ group with this rifle at 800 yards with handloaded match ammo. Good rifle.

  4. I was most pleased by his minor mentions of the overlooked fact that the 2nd Amendment mentions the militia. What good is a militia if it is not allowed to own effective weaponry? When I say I am pro-2nd Amendment, I mean all of it. I don’t just mean the ‘keep and bear arms’ part, I mean the militia part as well. Most states define the militia, but joining a militia is borderline or outright illegal or considered a near-terrorist act. The rationale for this is obvious. The commonplace existence of militias would make a lot of government overreach impossible. It also would make the US less stable, politically. On the plus side, if local governments tried to shut down all businesses and put everyone under house arrest, it is likely a militia would show up at the next city council meeting to ‘discuss’ the issue. On the minus side, a corrupt militia leader could easily flout the law. I think all sherrifs should have a milita group. It would serve as a deterrent to invasion and also act as a vital reserve force in the case of domestic unrest (think Ferguson or Milwaukee). It also would make people think long and hard about who they elect as sherrif.

    Although I am overall pleased with the ruling, the judge shows his ignorance of firearms laws. It is easier for me to purchase a howitzer than a .22 bolt action rifle. Black powder cannon are not firearms (just like other black powder weapons), so no purchase permit, no background check, no need to go through an FFL. Just pay and have it delivered directly to your house. It is the last thing the Biden administration wants you to purchase with your stimulus check.

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