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Much has been written in the last couple of days regarding United States District Court Judge Roger Benitez’s decision on Friday declaring California’s ban on “assault weapons” — as defined in the statute — to be an unconstitutional limit on the right of California citizens “to keep and bear arms” under the Second Amendment.
But this was not Judge Benitez’s first foray into Second Amendment jurisprudence that produced a favorable outcome for advocates of Second Amendment rights. Back in August 2020, the Ninth Circuit upheld a lower court decision that similarly found as unconstitutional a related California statute — one banning the ownership of “large-capacity magazines.” The author of that lower court decision was Judge Roger Benitez.
In between those two decisions, there was an “en banc” decision from the Ninth Circuit on a different subject of constitutional disagreement over the meaning of the Second Amendment. In Young v. Hawaii, the Ninth Circuit upheld Hawaii’s “open carry” firearm regulations, which require applicants applying for an “open carry” license to show either an “exceptional case or demonstrated urgency” to carry a firearm. The plaintiff, George Young, twice applied for an “open carry” license, but his applications were denied based on his failure to meet the “exceptional case or demonstrated urgency” requirements. //
there are some interesting aspects of Judge Benitez’s opinion on Friday that are worth noting because he takes some time to explain where Second Amendment jurisprudence stands — 13 years after the Supreme Court changed everything with its decision in the District of Columbia v. Heller.
As Judge Benitez wrote, there was Second Amendment law pre-Heller, and there is Second Amendment law post-Heller, and only the latter seems important to Judge Benitez — unlike the majority view in the en banc decision in Young v. Hawaii. //
The Second Amendment “elevates above all other interests the right of lawabiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S., at 635. The Supreme Court clearly holds that the Second Amendment protects guns commonly owned by law-abiding citizens for lawful purposes.
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… 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.
Prior to 2008 [Heller], lower court opinions did not acknowledge that the Second Amendment conferred an individual right to own firearms, or that the right applied against the states. See e.g., United States v. Hancock, 231 F.3d 557, 565–66 (9th Cir. 2000) (“[T]his court has concluded that ‘the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.’”)
Judicial recognition of an individual right to keep and bear arms to be respected by the states would come later with the Heller decision in 2008 and the McDonald decision in
- //
Heller involved a “federal” law, in that it was gun ownership prohibition in the District of Columbia. McDonald extended Heller to state and local regulations by holding that rights under the Second Amendment were applicable to state law under the 14th Amendment. //
When a severe restriction on the core right of self-defense amounts to a destruction of the Second Amendment right, it is unconstitutional under any level of scrutiny. “‘A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny.’” //
DeeInFL
17 hours ago edited
This line of questions from Justice Alito I found quite interesting during oral hearings on New York State Rifle & Pistol case.
Alito: Mr. Dearing, are the people in New York less safe now as a result of the enactment of the new city and state laws than they were before?
Dearing: No, I don't think so. We made a judgment, expressed by our police commissioner, that it was consistent with public safety to repeal the prior rule and to move forward without it.
Alito: Well, if they're not less safe, then what possible justification could there have been for the old rule, which you have abandoned?
Dearing did not have an answer except that the city's arbitrary restrictions on transporting firearms may have made its other rules a bit easier to enforce.