The ruling begins with the description, cavalier bordering on offensive, of the AR-15 as the firearms equivalent of a Swiss Army knife. “A perfect combination of home defense weapon and homeland defense equipment,” Benitez chirped, sounding more like pitchman for the firearms industry than impartial assessor of what limits the Constitution imposes on efforts to combat the scourge of gun violence.
When he was nominated for the judgeship in 2003, the American Bar Association assessed Benitez as “not qualified” for the job, citing “significant concerns about Judge Benitez’s judicial temperament and his courtroom demeanor.”
Lawyers interviewed about Benitez, then a federal magistrate, described him as “arrogant, pompous, condescending, impatient, short-tempered, rude, insulting, bullying, unnecessarily mean, and altogether lacking in people skills.” (Ironically, Sen. Dianne Feinstein (D-Calif.), the Senate’s leading advocate of the federal assault-weapons ban, went to bat for Benitez.)
To read his assault-weapons opinion — and an earlier Benitez ruling striking down California’s limit on large-capacity magazines — is to suspect the ABA had a point.
“Persons with violent intentions have used large capacity magazines, machine guns, hand grenades and pipe bombs, notwithstanding laws criminalizing their possession or use,” Benitez wrote in the magazine case. “Trying to legislatively outlaw the commonly possessed weapon de jour is like wearing flip flops on a slippery slope. A downhill slide is not hard to foresee.” (An appeals court panel, splitting 2 to 1, upheld the ruling, but an 11-judge panel will rehear the dispute this month.)
On assault weapons, Benitez was even more derisive, going out of his way to minimize the impact of mass shootings. “The evidence described so far proves that the ‘harm’ of an assault rifle being used in a mass shooting is an infinitesimally rare event,” he wrote. “More people have died from the Covid-19 vaccine than mass shootings in California.” Really? Citation, please. Assault weapons, he said, “could just as well be called ‘home defense rifles’ or ‘anti-crime guns.’”
The truly worrying aspect of these opinions, though, isn’t the lack of judicial demeanor — it’s that Benitez’s approach, albeit in more sober-sounding language, has every prospect of prevailing as gun cases make their way through increasingly conservative federal courts to the conservative-dominated Supreme Court.
The scorecard so far is heartening for those who believe in common-sense gun regulation: All five federal appeals courts that have considered assault weapons bans have upheld them.
Don’t count on that lasting. In the years since the Supreme Court ruled in 2008 in District of Columbia v. Heller that the Constitution protects an individual right to bear arms, “gun-safety laws have been generally upheld in the appeals courts,” says Hannah Shearer, litigation director at Giffords Law Center. However, Shearer warns, “there have been cracks beneath the surface that have been becoming more obvious,” as conservative judges have authored vigorous dissents — including one by then-appeals court judge Brett M. Kavanaugh on the District’s assault weapons ban.
The court in Heller said that “the right secured by the Second Amendment is not unlimited,” but, over the objections of conservative justices eager to get on with it, has shied away since from explaining what gun restrictions pass constitutional muster or what test should be applied. That’s about to change. Next term, the court will hear a case challenging New York’s strict limits on permits to carry guns in public.
As Benitez analyzed the constitutionality of the California law, he said the question was simple: “Heller asks whether a law bans a firearm that is commonly owned by law-abiding citizens for lawful purposes. It is a hardware test,” he wrote. “The overwhelming majority of citizens who own and keep the popular AR-15 rifle and its many variants do so for lawful purposes, including self-defense at home. Under Heller, that is all that is needed.”
Not noted by Benitez: Assault weapons were the firearm of choice used in the seven deadliest mass shootings in the past decade.
This is dangerously circular: If a dangerous weapon achieves enough market saturation, it’s not subject to regulation, even if lawmakers conclude that is the best way to protect the population.
The critical point here isn’t the future of assault-weapons bans themselves. There are more effective ways to prevent gun violence, including strengthened background checks and the limits on magazines that Benitez declared unconstitutional. The question is what space will remain for reasonable gun regulation once a conservative court majority that fetishizes the Second Amendment is finished with the enterprise.
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