A Gun Rights Win in California With Sights Set on the U.S. Supreme Court



A shooting that killed five children at a California elementary school in 1989 helped propel an assault weapons ban in the state. A federal judge overturned it on June 4.

Credit...Stockton Record, via Asociated Press



In 1989, a gunman’s three-minute rampage killed five children at a Stockton elementary school and wounded some 30 students and teachers. The resulting shock and outrage gave rise to the nation’s first state ban on assault weapons, signed by a Republican governor.

For more than three decades, it was a policy that advocates for tougher gun laws fought for nationwide, and that gun rights activists furiously fought to overturn. Late Friday, a federal judge in San Diego ruled the California ban unconstitutional, a drastic escalation of the battle over the Second Amendment in an era when the Supreme Court has been substantially reconfigured by the Trump administration.

The ruling — the latest of several pro-gun rights decisions by Judge Roger Benitez of the U.S. District Court for the Southern District of California — will not change the state’s strict gun laws overnight, if ever. At the request of Attorney GeneralRob Bonta, Benitez stayed his decision for 30 days so the case could be appealed to the U.S. Court of Appeals for the Ninth Circuit, where it is likely to join a number of other closely watched gun rights cases on appeal. State officials predicted a win on the assault weapons ban.

But the judge’s provocative opinion, comparing military-style firearms to Swiss Army knives, underscored the growing boldness of pro-gun advocates hoping for success with a friendlier federal bench and a more rightward-leaning Supreme Court.

“This is an extreme gun rights reading of the Second Amendment,” Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, said of the judge’s ruling. “But it might be where our Supreme Court wants to go.”

Advocates on both sides are bracing for the possibility of a Supreme Court ruling that could overhaul the legal underpinnings of gun control laws nationwide. Gun rights supporters were heartened in April when the top court agreed to decide whether the Second Amendment guarantees a right to carry guns outside the home.

That case, which is to be argued in the fall, is likely to produce a major statement on the scope of the right to bear arms, the first since two decisions in 2008 and 2010 announced an individual right to keep guns in the home for self-defense.

In the decade that has followed, the court has largely avoided Second Amendment cases, turning down countless appeals in challenges to gun control laws across the nation after lower courts sustained them. The Supreme Court’s decision to hear the new case, a challenge to a New York law that requires people seeking a license to carry a gun outside their homes to show a “proper cause,” appears to be a result of the court’s new six-justice conservative majority.

The nation has been grappling with a wave of increasing gun violence, as well as a surge in gun ownership, during the coronavirus pandemic. Last month, President Biden announced a series of executive actions designed to help reduce gun violence, and after the workplace shooting that killed nine employees of the Santa Clara Valley Transportation Authority in San Jose May 26, Gov. Gavin Newsom of California condemned the “rinse and repeat” cycle of mass shootings in America.

In a statement late Friday, the governor called Judge Benitez’s ruling “a direct threat to public safety and the lives of innocent Californians.”

The June 4 decision arose from a 2019 lawsuit filed by James Miller, a California resident, and the San Diego County Gun Owners, a political action committee. Gun advocates say that the case echoes the arguments of at least one other legal challenge already pending in appellate court.

The suit charges that California is “one of only a small handful of states to ban many of the most popular semiautomatic firearms in the nation because they possess one or more common characteristics, such as pistol grips and threaded barrels.” Other states with assault weapons bans include New York, New Jersey, Connecticut, Hawaii, Maryland and Massachusetts.

A federal assault weapons ban adopted in 1994, following on the heels of California’s policy, expired a decade later, allowing the AR-15 to re-enter the American gun market. Such weapons, which are often used with detachable magazines for ammunition, have been associated with mass shootings nationally, including the 2018 killing of 17 people at a high school in Parkland, Fla.

Benitez wrote that California’s ban, which has been revised several times over the years, violates the Second Amendment and characterized AR-15s as “fairly ordinary, popular, modern rifles,” not “bazookas, howitzers or machine guns.”

“Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment,” the judge wrote, adding that the case was about “what should be a muscular constitutional right and whether a state can force a gun policy choice that impinges on that right with a 30-year-old failed experiment.”

The judge and his writing style were familiar to advocates on both sides of the debate. In 2017, Judge Benitez struck down a law passed by the state’s voters that would have banned possession of magazines holding more than 10 bullets, a decision that is currently pending on appeal before the Ninth Circuit. In that ruling, which briefly flooded California with the sort of large-capacity magazines that were used last month in the San Jose rail yard shooting, the judge wrote that “the problem of mass shootings is very small.”


In another ruling in 2020, Judge Benitez blocked a background check law for purchases of ammunition and wrote that in California, “the Second Amendment gets even less respect” than Rodney Dangerfield.

The son of Cuban immigrants arrested early in Fidel Castro’s regime and accused of being U.S. sympathizers, Judge Benitez fled to the United States with his brother at age 10. Their mother followed, becoming a schoolteacher and raising them in Imperial County, a rural area in California. Judge Benitez went on to graduate from San Diego State University and what is now the Thomas Jefferson School of Law.

His supporters hailed him as “the American dream” in 2003 when President George W. Bush nominated him to the federal bench, but the American Bar Association gave him a rare “not-qualified rating,” holding up his confirmation for 10 months. In 2004 remarks to Congress, A.B.A. officials called him “arrogant, pompous, condescending, impatient, short-tempered, rude, insulting, bullying, unnecessarily mean and altogether lacking in people skills.”

Advocates on both sides of the gun debate describe his court as an effective haven for gun rights plaintiffs, thanks in part to an obscure rule that allows “related cases” to be channeled to one judge with expertise on the legal issues rather than randomly assigned.

“It is not an accident that this one federal judge is getting to opine, piece by piece, on nearly every aspect of California’s gun safety reforms,” said Ari Freilich, the state policy director for the Giffords Law Center to Prevent Gun Violence.

The legal calculus for pro-gun advocates seeking to push cases toward the U.S. Supreme Court has drastically changed over the past year, with the death of Justice Ruth Bader Ginsburg in September and her replacement the next month by Justice Amy Coney Barrett. As recently as last June, the court turned down some 10 appeals in Second Amendment cases, indicating that the court’s conservative wing, which at the time had five members, was unsure it could secure Chief Justice John G. Roberts Jr.’s vote.

Indeed, the Supreme Court has turned down challenges to laws like the one at issue in Friday’s decision in California. In 2015, for instance, the court refused to hear a Second Amendment challenge to a Chicago suburb’s ordinance that banned semiautomatic assault weapons.

In dissent in 2015, Justice Clarence Thomas, joined by Justice Antonin Scalia, accused the court of abdicating its responsibility to enforce the constitutional right to keep and bear arms. “Roughly five million Americans own AR-style semiautomatic rifles,” Justice Thomas wrote, referring, he said, to “modern sporting rifles.”

Among survivors of gun violence still reeling from the California decision, however, such arguments about the widespread popularity of military-style firearms are unpersuasive.

“If a Swiss army knife had been used, my daughter would still be alive today,” tweeted Fred Gutenberg, whose 14-year-old child Jamie was killed in the shooting at Marjory Stoneman Douglas High School in Parkland. “This judge clearly has the gun lobby whispering in his ear. I look forward to the appeal.”

Jack Begg contributed research. This article originally appeared in The New York TImes, copyright 2021.


  1. William, you are correct, the “assault weapons” are not a major factor in gun deaths. In fact they rate very low (including all rifles) in homicides.


    And, we have already had a ban on these weapons and the ban had no effect on crime.


    If you don’t have time to read the wikipedia article, here is the take away:

    “Studies have shown the ban had little effect in overall criminal activity, firearm homicides, and the lethality of gun crimes.”

    Rifles, ALL rifles only account for a couple of percentage points of the murder rates. But the press sure loves to play up the assault rifle as the evil of all evils.

    Most mass murders are known to be troubled people. What we need in this city, state and country are more in-patient mental health care facilities — a lot more.

    Cheap suit politicians who try to make careers out of crisis and tragedy are bottom-feeders. And, we seem have lots of them around — always.

  2. Indeed, subversive acts or threats, such as by the Mayor, for political points…

    … and who would reward him for it?

  3. The San Jose City Council is slated to vote on adopting a massive new firearms ordinance (Item 4.2 on the agenda) that will have the effect of driving all gun stores and gunsmiths from San Jose. Adios Basspro and the mostly mom & pop stores. Adios to the jobs and tax revenue they generate.

    No public safety benefit in the slightest – just the opposite. The proposed ordinance will increase victimization and increase illegal firearms trafficking. Those ‘at risk’ must travel to other cities to purchase and drive or take Uber since VTA prohibits all firearms on their property.

    While rare, workplace violence like VTA’s does happen. But detection, prevention, and response training is virtually unknown by VTA, City of San Jose, and Santa Clara County. One exception is SCC’s Behavioral Health. Employees must deal with mentally ill clients and are trained to cope.

  4. 3 pointer for the Second Amendment. Now lets see if we can do the same for the First Amendment, Dump Gavin Nuisance, clip the wings off Twitter, Smash book in the face, Drown google, boycott Amazon and citi bank.

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