Guest Post: “Breaking the Assault Weapon Opinion Down Further” (Part II)

Today’s post is Part II of our consideration as to whether there are limits to the kind of weapons Americans have a right “to keep and bear” under the Second Amendment.

In Part I (found here),  Jake Charles, Executive Director of Duke Law’s Center for Firearms Law (CFL), unpacked the important new case, Miller v. Bonta, which grappled with just that issue.  In it Judge Roger T. Benitez of the United States District Court for the Southern District of California, found California’s “assault weapons” ban unconstitutional on Second Amendment grounds.

In Part II, which is cross-posted from CFL’s Second Thoughts blog (found here), Jake provides us with his expert analysis and critique of the case, and what it might mean going forward.

I won’t be able to give you my thoughts about the case today, but will do so in the near future.  Meanwhile, here are Jake’s observations:

Part II: Breaking the Assault Weapon Opinion Down Further

by Jake Charles

In yesterday’s post, I unpacked the court’s decision in Miller v. Bonta, striking down California’s assault weapons ban. In today’s post, I look at the case with a more critical eye. I first focus on matters of doctrine and then turn to style.

As a doctrinal matter, I see three important aspects to the case:

1. 1. A new quintessential self-defense weapon?

Heller famously called the handgun “the quintessential self-defense weapon” (QSDW). It gave a litany of reasons for why that might the case: “It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.” Ultimately, however, “[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home.”

Miller speaks in similar terms about the AR-15. Indeed, it might be the new paradigm for self-defense weaponry. “The AR-15 rifle is light in weight, and has good ergonomics, and is suitable for people of all statures and varying levels of strength.” It comes standard with a 30-round magazine to confront burglars and its common features are adapted to defensive use. “The gas piston design,” for example, “reduces the recoil so that the young or old or not-particularly-strong have better control.”

One can hear echoes of Heller in nearly all of Miller’s description of the AR-15. It’s not yet clear whether there are doctrinal implications from the classifying a weapon as the QSDW, but as the next section suggests, I think there likely ought to be.

1. 2. “The Heller test”

Judge Benitez invoked “the Heller test” to judge constitutionality. This “test,” to my mind, badly misreads Heller and lacks any normative grounding. Heller made a descriptive statement about handguns—as commonly used by law-abiding citizens for lawful purposes—but did not lay down any sort of “test” like this opinion derives from it.

Criticisms of Heller’s “common use” test abound (including by me), but even taking it on its own, the best reading of Heller is that common use is a question about coverage, not protection. It answers the question of whether a weapon falls within the scope of the Second Amendment, not the question about whether and how the government can regulate that weapon. (So it helps answer questions about whether regulations on stun guns, knives, nunchaku, etc. get Second Amendment scrutiny at all). I confess that that might be different for the QSDW, as I’ve puzzled through. And Joseph has also discussed the possibility of three levels of weapons review. But I can’t see Heller to create a test that entails absolute protection for any weapon in common use.

As a normative matter, why would the government’s regulatory authority be contingent on weapon popularity? The government can ban anything it wants as long as it does so before the weapon becomes commonly owned or used? And then so long as it continues the ban, it’s home free? Judge Easterbrook didn’t think much of this argument: “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.” If the 1994 Assault Weapons ban were still in effect, there would be a heck of a lot fewer AR-15s. Why that law’s expiration should settle the constitutionality of California’s ban is not clear.

1. 3. The militia right again?

Heller interred the theory of the Second Amendment that made the right to keep and bear arms contingent on some connection with the militia. Judge Benitez seems to have resurrected one version of it. On his telling, a person has an individual constitutional right to keep and bear those weapons that would be useful in a modern militia, notwithstanding Heller’s admonition that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.” It’s not clear what separates an AR-15, that Judge Benitez finds useful for militia service, from an M-16. (Besides the obvious difference he stresses—one is a semi-automatic and the other is capable of automatic fire.)

If an AR-15 cannot be banned for the independent reason that it’s useful in a militia, how is the machinegun ban in federal law constitutional? How are prohibitions on grenades and other explosives? Sure, they may have to meet some nebulous common-use test, but as of 2017, there were 630,019 machineguns lawfully registered nationwide. That sure seems like a lot. Maybe Judge Benitez would be fine discarding Heller’s dicta on the M-16 and allowing the proliferation of privately owned machineguns, but the militia route seems a strange path to get there. 

The doctrinal impact of the opinion, however, will likely not be long-lasting. The Ninth Circuit will hear the case on appeal and will, like it did in the case affirming Judge Benitez’s ruling on large-capacity magazines, tighten up some of the theoretical and doctrinal arguments, even if it upholds the outcome. I doubt the Ninth Circuit will discard its two-part framework and adopt “the Heller test” or that it will vindicate an individual right to weapons useful in militia service. But only time will tell.

I’d be remiss in discussing the opinion if I did not also highlight the less substantive aspects. Whatever one thinks of assault weapons laws as a matter of policy or constitutional law—and there are interesting and important questions on both sides (Greg Wallace, for example, has written several in-depth law review articles criticizing bans on assault weapons, one of which I’ve interviewed him about)—the Miller decision is a disappointing opinion, full of overstatements, misplaced rhetoric, and doctrinal miscues. (Apparently concerns about his judicial temperament were voiced when Judge Benitez was first nominated for the bench.)

As I said yesterday, my assessment of this style is not based on my underlying views of the merits of the ruling. I noted last round, for example, the contrast between Judge Lee’s measured opinion for the Ninth Circuit upholding Judge Benitez’s similarly strange opinion declaring California’s large-capacity magazine ban unconstitutional. The wide stylistic and tonal difference between those two opinions—which reach the same substantive outcome—shows the substance can be treated with greater care.

The same goes for other opinions striking down laws on Second Amendment grounds, like (to add examples to the two I mentioned yesterday) Judge Griffith’s opinion for the D.C. Circuit in Wrenn or Judge Sykes’s several opinions for the Seventh Circuit in Ezell. It’s unfortunate that the Miller opinion reads more like a culture-war diatribe than a fair adjudication of an important legal and policy issue.

In fact, the opinion reads to me more like an overly enthusiastic advocate’s brief than a serious judicial opinion. All of the evidence, in the court’s telling, is on the side of the challengers. All of the plaintiffs’ experts are distinguished with impressive resumes, in the court’s telling, while the state’s experts credentials are unmentioned (at best) or slighted.

The plaintiffs’ experts opinions are always credited; the state’s dismissed where they don’t support the through-line of the opinion. The case is “simple” (p.17) and “obvious” (p.17) with “an easy question and answer” (p.92). There are no complexities or difficult factual or legal questions. There is almost zero recognition of the harms these guns can cause (and an explicit downplaying of those harms, as in the egregious phrase “[e]ven if a mass shooting by assault rifle is a real harm . . .” (p.17)).

The opinion is casually dismissal of countervailing views and jettisons a series of beliefs as “commonly espoused myths” (p.43) and as a “bromide” (p. 43) and “trope” (p.46) and “old saw” (p.47). There are several “aside[s]” where the court just seems to want to take a jab at the other side or other judges. (One such aside inaccurately disputes the origin of the phrase assault weapon; another suggests that the use of means-end scrutiny is problematic because it cannot be found in the Constitution.)

And strange characters show up in the opinion that seem designed less to illuminate than to score political points or needle opponents: Korematsu, Fidel Castro, Ho Chi Minh, and the Taliban and Iraqi insurgents. The style is off-putting for anyone not already enthusiastic about gun rights and does not seem designed to explain or persuade.[1]

Second Amendment doctrine is still in its infancy. There are only 13 years of federal court engagement with questions about the state’s authority over private firearm possession and use. Whether the state can ban assault weapons is an important and serious issue. I’m looking forward to the appellate decision seriously discussing California’s ban, regardless of how it comes out. (Miller may not even be the vehicle the Ninth Circuit uses, as an appeal from the district court decision upholding the ban is already briefed.)

Notes

[1] In addition to the stylistic choices, the opinion’s organization is unclear, not intuitive, and does not follow the typical format for a judicial opinion. Subject headings range from descriptive (e.g. “Criminal Penalties”) to seeming non-sequiturs (e.g., “You don’t need more than 2.2 shots and you don’t need seat belts or smoke detectors”) and they do not clearly follow or relate to the other subject headings. For example, the Introduction heading is followed by 7 subheadings whose relation to one another and introductory nature is unclear. Discussion about the evidence of the law’s burden is couched in nesting subsections assessing the reasonableness of the law’s fit, not in the part of the opinion discussing the burden. Some of the analogies are poor or forced: “Like Victor Hugo’s Inspector Javert relentlessly searching for Jean Valjean, California continues to amend its statutes to prohibit more and more firearms” (p.17); banning weapons useful for the militia “may not be a severe burden today when the need for the militia is improbable. One could say the same thing about the improbable need for insurance policies.” (p. 81). There are grammatical errors aplenty, and the opinion was uploaded with redlining intact. 

Still, remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!