California Gun Decision Opens Another Front in the Culture Wars

Posted in: Constitutional Law

On Friday, a San Diego federal judge struck down California’s statewide ban on assault weapons. It was a dramatic decision in a state that was the first to prohibit those weapons (in 1989). That prohibition was signed into law by a Republican governor, George Deukmejian.

How times have changed.

Judge Roger Benitez’s decision is the latest salvo in an escalating battle over the meaning of the Second Amendment and the appropriate limits on government’s ability to regulate guns and gun ownership. But the decision’s significance is still more sweeping, and is not limited to its bold, some would say radical, interpretation of the law.

The decision signals the deepening cultural divide over the significance of gun ownership, and it reflects the intensifying and dangerous tribalism in American life. In the context of our hardly ended COVID-19 pandemic, it echoes the schism about public health restrictions seen repeatedly during the last fifteen months.

Judge Benitez himself linked resistance to the assault weapons ban and responses to the pandemic when he claimed that “More people have died from the Covid-19 vaccine than mass shootings in California.”

Indeed, it is not coincidental that several demonstrations and protests against COVID-19 restrictions prominently featured gun owners proudly displaying their firearms even in places where guns cannot be openly carried. And gun sales spiked significantly as the pandemic unfolded.

Like those protesters who saw mask mandates and stay at home orders as threats to their freedom, Judge Benitez framed his decision as an essential defense of freedom against state intrusion. The Second Amendment, he wrote, “is about America’s freedom: the freedom to protect oneself, family, home, and homeland. California’s assault weapon ban disrespects that freedom.”

Research now shows that the antagonism toward COVID-19 restrictions and views about guns divide along similar demographic and partisan lines: urban/rural, male/female, black/white and Democrat/Republican.

As a Pew survey report recently noted, “Gun ownership is more common among men than women, and white men are particularly likely to be gun owners. Among those who live in rural areas, 46% say they are gun owners, compared with 28% of those who live in the suburbs and 19% in urban areas. There are also significant differences across parties, with Republican and Republican-leaning independents more than twice as likely as Democrats and those who lean Democratic to say they own a gun (44% vs. 20%).”

Judge Benitez’s decision seeks in several ways to normalize gun ownership in general and the possession of assault weapons in particular. His rhetoric, particularly his jarring metaphors and comparisons, strain to suggest that there is nothing out of the ordinary about assault weapons.

In the first line of his opinion, the judge writes that the AR-15 rifle is like the “Swiss Army Knife” in its versatility. That analogy ignores the radically different potential in these two weapons’ ability to kill many people quickly.

At another point, as if parodying a country music song, he compares possession of AR-15s and ownership of pick-up trucks.

He claims that AR-15s are more popular than even “Ford’s F-150 pickup trucks…. Imagine,” Benitez continues, “every time one passes a new Ford pickup truck, it is a reminder that two new modern rifles have been purchased. That is a lot of modern rifles owned by Americans.”

Yet at no point does the judge really ask about which Americans own rifles. His answer is implicit everywhere in the decision, though. The people who own rifles, even assault rifles, are the real, most authentic, Americans. Indeed, Benitez repeatedly uses the word “average” to describe those who own AR-15s, indeed any gun.

“This case,” he insists, “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.”

And, like his culture war allies who accuse the liberal media of bias in their coverage of COVID-19, the judge opines that one might be forgiven “if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter.”

Throughout his decision, Benitez describes a society in which crime and violence are out of control and where citizens must fend for themselves before threats to their persons and property. For the judge, gun ownership is a kind of justifiable vote of no confidence in a government which is more interested in restricting the freedom of law-abiding Americans than in protecting them from violent assaults on their person and in their homes.

67% of gun owners agree and say that protection is a major reason they own a gun. Benitez articulates their view in his opinion: “Guns and ammunition in the hands of criminals, tyrants and terrorists are dangerous…but that “guns in the hands of law-abiding responsible citizens are better.”

In the end, last week’s court decision must be seen as the latest expression of resentment against cultural elites who express contempt for gun owners and disdain for their way of life.

It is a response to the kind of sentiments expressed by President Barack Obama when in 2008, he suggested that working class and rural supporters of the Republican party “cling to guns or religion” simply as a way of expressing “antipathy to people who aren’t like them … as a way to explain their frustrations.”

Whatever appellate courts might ultimately do with the Benitez decision, this country will remain deeply divided about things like COVID-19 restrictions and gun ownership as long as the underlying antipathies animating these divisions are unthinkingly repeated by our political leaders, and by the judges they appoint.

It is long past time for all of us to undertake the hard work of addressing the causes of antipathy and division, and the roots of the frustrations that Obama identified. Only then do we have a chance to find workable ways of dealing with the fear that leads so many Americans to seek safety by owning assault weapons.

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