by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Last week, in Miller v. Bonta, U.S. District Court Judge Roger Benitez struck down California’s ban on so-called “assault weapons,” such as the ubiquitous AR-15, as a violation of the right of individuals to keep and bear arms for the militia purposes of defense against tyranny, insurrection, and invasion, as well as for self-defense against the more common variety of criminals.
Understanding that the Second Amendment was not adopted to protect hobbies and recreation, Judge Benitez implicitly rejected the notion, suggested by some, that AR-15s — semi-automatic variants of the automatic M16s used by the armed forces — are merely “modern sporting rifles.” …
… Although the Supreme Court pretended otherwise in District of Columbia v. Heller (2008), defense against tyranny, not merely against criminals, is the primary reason the keeping and bearing of arms is expressly protected within the Bill of Rights. …
… California will appeal Judge Benitez’s decision to the activist Ninth Circuit Court of Appeals, which has often issued adverse Second Amendment rulings, and might be expected to do so in this instance. Already, however, an earlier decision overturning the gun ban, by the U.S. District Court for the Central District of California, in Rupp v. Becerra, is pending at the Ninth Circuit. Yet another decision from Judge Benitez, Duncan v. Becerra, overturning California’s ban on standard-capacity ammunition magazines common to AR-15s, comparable rifles, and countless semi-automatic pistols, has been upheld by a three-judge panel at the Ninth Circuit and is pending en banc review.
Of course, all of these cases could end up being appealed to the Supreme Court, but the court has already refused to take several cases challenging “assault weapon” bans in other states. Assuming the court took one or more of the California cases, however, it would have the opportunity to correct errors it made in Heller, which otherwise could be the basis for prohibiting defensive arms of the future.