Last week, in Miller v. Bonta, Judge Roger T. Benitez of the United States District Court for the Southern District of California, struck down California’s assault weapons ban as unconstitutional under the Second Amendment. In today’s post, I’ll describe the doctrinal and theoretical moves the opinion makes, and tomorrow’s post will provide further analysis and critical engagement.
The opinion is fairly strange. One oddity is that Judge Benitez has also authored similar decisions striking down other California regulations under the Second Amendment. (Here’s my two–part summary of the Ninth Circuit’s opinion upholding his ruling on California’s large-capacity magazine ban.) The reason Judge Benitez has had so many of these challenges before him is important and does not get enough attention. It is due to a peculiar “related cases” rule in the Southern District of California. The rule is supposed to allow disposition of similar issues arising between parties to be adjudicated efficiently by a single judge, not to allow a plaintiff to funnel all of its constitutional challenges to the same judge. As the San Diego Union-Tribune reports, the district’s rule (unlike those in other federal districts, such as the one covering Los Angeles) does not even allow an opposing party to object that the cases don’t satisfy the rule. And, on the merits, it does not seem that anything ties the series of cases before Judge Benitez together other than the fact that they raise Second Amendment challenges to state laws. As applied in that broad way, the rule is a strong incentive for plaintiffs to shop for a favorable judge and have all their cases heard before her.
But the opinion itself is even more bizzare than the rule that landed the case in this courtroom. Some legal scholars have called the ruling “nutty,” others have described it as lacking nuance and “not very judicial,” and others still—including one commentator who has praised Heller as generally a “methodologically rigorous originalist opinion”—have argued that it is “a bad opinion that gives every impression of being driven by substantive policy rather than law.” I have some of my own thoughts on the opinion’s style, tone, rhetoric, and substance, but first let me lay out the case it makes.
It leads off with an introduction that invokes the utility of the Swiss Army Knife as an analogy for the adaptability and utility of the AR-15, the firearm that serves as the exemplar for the opinion’s discussion of the prototypical type of weapon prohibited under California law. Though it spans 94 pages, the core of the court’s rationale is contained in one paragraph from the introduction:
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. (p.2)
That, ultimately, is the legal conclusion the court reaches: the Second Amendment precludes a prohibition on a weapon commonly possessed by law-abiding citizens for lawful uses (more on this specific rationale later).
Facts and Legal Framework
The opinion recounts the origin of the law in 1989 (as a response to a school shooting that killed five students and left nearly 30 others wounded) and its revision in 2000. At the time, the court says, the law “was a policy choice unencumbered by constitutional considerations” because courts in that pre-Heller context had construed the Second Amendment as inapplicable to private firearm possession for private purposes. The plaintiffs challenged the current version of the law barring rifles meeting one of three conditions: (1) a semiautomatic centerfire rifle with detachable magazine and one additional feature: a pistol grip that protrudes conspicuously beneath the action of the rifle, a thumbhole stock, a folding or telescoping stock, a grenade or flare launcher, a flash suppressor, or a forward pistol grip; (2) a semiautomatic centerfire rifle that has a fixed magazine able to hold more than 10 rounds; or (3) a semiautomatic centerfire rifle that has an overall length of less than 30 inches.
The court describes two tests it will use to judge the law: (1) “the Heller test,” and (2) the Ninth Circuit’s two-part framework. (The Ninth Circuit, in an opinion by Judge Lee upholding Judge Benitez’s prior ruling on large-capacity magazines, already rejected Judge Benitez’s use of the “the Heller test”).
The Heller Test
For “the Heller test,” the opinion reads Heller to require only an inquiry into the commonality and lawful use of a piece of hardware.
As applied to [the assault weapon ban], the Heller test asks: is a modern rifle commonly owned by law-abiding citizens for a lawful purpose? For the AR-15 type rifle the answer is “yes.” 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. Using the easy to understand Heller test, it is obvious that the California assault weapon ban is unconstitutional. Under the Heller test, judicial review can end right here. (p.13).
The opinion recites statistics about the (undeniable) popularity of the AR-15 and similar rifles, even remarking that “[t]here are probably more modern rifles in circulation than there are Ford F-150 pickup trucks.” (p.15). The case is “simple” because California bars a common lawfully used weapon. That’s fatal under “the Heller test.”
The Two-Part Framework
Despite his disagreement with the Ninth Circuit’s framework (the court of appeals “has yet to adopt the easy to grasp Heller test,” he notes), the judge applies it next. That framework has two steps: step one looks to whether the law burdens protected conduct and step two tests the law against an appropriate form of means-end scrutiny. At step one, the court finds the regulation to burden protected conduct and that there is no historical analogue to this law that would indicate it regulated conduct not understood to be within the scope of the Second Amendment. “Prior to the 1990’s, there was no national history of banning weapons because they were equipped with furniture like pistol grips, collapsible stocks, flash hiders, flare launchers, or barrel shrouds.” (p.19).
At step two, the court helpfully describes Ninth Circuit precedent as using “a sort-of bull’s eye test” (p.20) to determine the level of scrutiny a law gets. (I’ve used a similar analogy in teaching this framework.) If the law severely burdens conduct lying close to the core of the Second Amendment, then strict scrutiny applies. If the burden is slight or the conduct is peripheral and not core, intermediate scrutiny applies. But if the burden turns into a “destruction” of the right, the law is categorically unconstitutional. The court says the case could be decided right there. But it proceeds to assume that some lower level of scrutiny applies because, it concludes, the law fails even under intermediate scrutiny.
In assessing intermediate scrutiny, the court first notes that the state’s interests is very important, but limits that interest to “reducing gun crime.” (p.23). As Joseph and Reva Siegel have explained, the state’s interest in gun regulation extends far beyond just reducing death and injury from guns. The court then moves on to assessing whether the law is a “reasonable fit” with that gun-crime suppression goal, either in general or as applied to mass shootings. (The court doesn’t miss an opportunity to criticize Ninth Circuit precedent on what’s required for a reasonable fit and bizarrely and incomprehensibly—to me, at least—says that “[u]nder this relaxed test a state could enter a person’s home without a warrant and seize him or his guns in violation of the Fourth Amendment prohibition on searches and seizures without a warrant or the Due Process Clause of the Fourteenth Amendment.” (p.23).
To judge reasonable fit, the court then marches through a long review of the evidence. First, it describes the AR-15’s utility for home defense. It mentions several examples of individuals using such a firearm to fend off home invaders. The first and primary example is the use by “a pregnant wife and mother to defend her family from two armed, hooded, and masked home intruders” (p.33). (Stranger rape is a constant backdrop throughout the opinion’s discussion of the need for an AR-15 to protect oneself in the home, including in the discussion of this example—“[i]t does not require much imagination to guess what would have happened next if the wife and mother did not have the firearm” (p.34).) And it describes the prohibited features as what make the gun particularly useful for self-defense, in no small part because they make the weapon more accurate. Here, the court highlights what it appropriately calls “[t]he accuracy conundrum.” (p.40). What makes a gun accurate for criminals also makes it accurate for self-defenders. The accuracy that makes an attack more lethal in a mass shooting incident also makes a home defender more accurate in shooting an intruder.
The court dismisses the notion that a weapon’s disproportionate use in crime is relevant to the analysis. After all, it says, handguns were prime crime guns at the time Heller was decided and the Court did not take that into account. “If use by criminals could justify a weapon’s ban, it would amount to something like a disfavored ‘heckler’s veto.’ We might call it the ‘criminal’s veto.’” (p.44). And anyway, says the court, the evidence does not show that assault weapons are used disproportionately in mass shootings (p.47), or even that mass shootings are much of a problem. “Recall,” the court says, that intermediate scrutiny requires the state to try to solve a real problem in a real way. But the “harm” (it’s in quotation marks in the opinion) of an assault weapon in a mass shooting is an “infinitesimally rare event.” (p.47). “More people have died from the Covid-19 vaccine than mass shootings in California. Even if a mass shooting by assault rifle is a real harm, the evidence also shows that AWCA’s prohibited features ban has not alleviated the harm in any material way.” (p.47) (emphases added). Despite this sentence coming in the Evidence section of the opinion, there’s no citation to the suggestion that more people have died from Covid shots than mass shootings in California; perhaps it was an inadvertent mistake meant to simply say more people died from Covid. If so, it’s one of the many signs of sloppiness in the opinion (along with the fact that the opinion retained redlined track-changes), not to mention the revolting suggestion that mass shooting deaths with an assault rifle might not be a “real harm.”
The court also discounts the notion that a person need not use an assault weapon because a home defender only uses an average of 2.2. shots in self-defense. The court spends a lot of time taking apart the genesis of this claim and rejecting the analysis by Lisa Allen, the state’s expert. He calls Allen’s analysis “incomprehensible” (p.50) and suggests it’s the result of “statistical manipulation” (p.51), and that she simply produces whatever results the state wants “on cue” (p.55). Even assuming that 2.2 shots is the average, the court says, sometimes people need more than average. Thus, while the burden may be minimal much of the time, “[a] law that bans seat belts or smoke detectors would impose a minimal burden much of the time” (p. 54). For good measure, the court again recites statistics about the number of victims of violent crime in the country. (Rape is invoked once more here to remind readers of the danger of forgoing home defense with an AR-15.) “It begs the question, are the lives of home invasion victims worth less than the lives of mass shooting victims?” (p.55).
Next, the court goes through the evidence of assault weapon use in mass shootings, finding the state’s experts unpersuasive. One problem, the judge notes, is the fact that there’s no commonly agreed definition of a mass shooting and no uniform government database tracking them. Yet the court tries to make sense of the competing pictures and then draws this strange causal inference:
How well has the California ban on assault weapons worked? Before AWCA, twice in a decade, an assault weapon was used in a mass shooting. On average, since AWCA, twice a decade, an assault weapon was used in a mass shooting. The assault weapon ban has had no effect. California’s experiment is a failure. (p.60).
Rape makes another appearance when discussing national statistics on assault weapons bans based on information from the experts’ data:
Had laws been in place that prevented acquisition of assault weapons during the years 2003 to 2007, 38 people may have been spared being shot with an assault weapon (although they may or may not have been shot with a non-assault weapon). In contrast, during the same five years, 7,700 women may not have been raped and 266,560 homeowners may not have suffered a violent victimization during the burglary of their homes had they been armed with an assault weapon. (p.61).
“Put simply,” the court says in summarizing the case, “the evidence indicates gun bans are ineffective at reducing gun crimes. Plaintiffs’ expert, economist John R. Lott, Jr., opines that ‘all credible evidence shows that assault weapon bans have little to no effect in reducing mass shootings, homicides, or violent crime in general.’” (p.69). (John Lott, it should be emphasized, is a very controversial gun-rights economist whose conclusions and methodology other scholars have often criticized.)
Every federal court of appeals to consider the question before Miller has upheld similar laws as constitutional, including the First, Second, Fourth, Seventh and D.C. Circuits (as well as a sister California district court addressing the same law). But the court dismisses their relevance for various reasons, some based on the differences in procedural posture or nature of the law at issue, others because of substantive disagreement with their arguments. One big difference is what the court calls “the jurisprudence of firearms alternatives” (p.74) that looks, in part, at whether the law leaves open sufficient alternative means of self-defense. Judge Benitez finds such an analysis inconsistent with Heller, which is not an outlandish reading of the opinion.
Finally, after detailing its effect on self-defense, the court advances a novel argument. I have not seen this in any court before. It holds—independent of that conclusion—that the law also fails intermediate scrutiny because it “imposes a burden on the Second Amendment right to own a firearm that is the ideal weapon for use in the militia.” (p.81). As a matter of first impression, it says that under intermediate scrutiny, “the ‘fit’ of a total ban is judged on its application to all aspects of exercising the Second Amendment right: home defense, militia use, sporting competitions, hunting, target practice, and other lawful uses.” (p.81). Because the AR-15 is good for militia use, the state can’t ban it. “Because it is a weapon of light warfare that is commonly owned, commonly trained, with common characteristics, and common interchangeable parts, it is protected for militia use by the Second Amendment.” (p.85). Citizen militias, the opinion asserts, “are not irrelevant.” (p.88).
It concludes: “The Second Amendment is about America’s freedom: the freedom to protect oneself, family, home, and homeland.” (p.92).
In tomorrow’s post, I offer some thoughts on several interesting doctrinal takeaways from the case and criticize some aspects of the opinion, including its tone and rhetoric. None of that stylistic criticism rests on my underlying views of the court’s conclusion. I have no similar qualms about the style or tone of Judge Manion’s dissent in the Seventh Circuit or then-Judge Kavanuagh’s dissent in the D.C. Circuit, to name just two examples of other opinions that consider assault weapons ban unconstitutional. But, in my view, this is an important question of law, and it deserves more serious consideration than this opinion.
 At this point, the opinion invokes an inaccurate gun-rights talking point: “As an aside,” it says, the “epithet” assault weapon is a misnomer, citing a dissent by Justice Thomas for the notion that the term was made up in 1989 “by anti-gun publicists to expand the category of ‘assault rifles’ so as to allow an attack on as many additional firearms as possible on the basis of undefined ‘evil’ appearance.” (p.8 n.17). But that’s just not true. The phrase was around before 1989, and in the materials for gun-buyers, not gun-banners, as this 1986 edition of Jack Lewis’s “The Gun Digest Book of Assault Weapons” shows quite clearly. The judge says the banned weapons could be more accurately called “home defense rifles” or “anti-crime guns” (p.8), but settles for the rest of the opinion on “modern rifles” (even dismissing the industry’s and advocates’ preferred term “modern sporting rifle” as too narrow because such weapons, the judge insists, are useful for more than sporting). He recognizes these modern rifles look different from the typical long guns envisioned in television and movies. “Parts once made of solid wood on guns of the past are gone.” (p.11).
 Curiously, and another point I’ll return to, the court notes that “court[s] have yet to address the subject of arms for militia use. Is the right to keep an assault rifle reasonably-related to militia use also a core right at the center of the bull’s eye or does it fall on the periphery of Second Amendment concerns? In view of the importance of keeping militia arms at the founding of the nation, and its continuing importance as a means of national self-preservation, this Court deems it to be a core right.” (pp.20-21 n.36) (emphasis added).
 The court says that, other than Heller and McDonald, “no federal court has applied this top tier of scrutiny.” (p.22). That’s not accurate. The D.C. Circuit in Wrenn struck down D.C.’s may-issue permit regime as categorically unconstitutional for just this reason. So did the two since-vacated Ninth Circuit panel opinions in Peruta and Young.