The Swiss-Army Knife Gun – The Next 2nd Amendment Test?

Post Parkland shooting protest

The Swiss-Army Knife Gun: The Next 2nd Amendment Test?

“Like the Swiss Army Knife, the popular AR-15 rifle is a perfect 

combination of home defense weapon and homeland defense equipment.”       

Opening line by U.S. District Judge Roger Benitez in a June 4th opinion, ruling rejecting California’s assault weapons ban.

Seven states plus the District of Columbia have statutes specifically banning assault weapons; California’s law has been in effect for thirty years and is very popular with the majority of the state’s voters. Still, California has had more than its share of mass shootings, some involving these banned weapons. But a small minority of California gun-zealots challenged the decades-old statute, producing a horrific ruling that declared that law unconstitutional. In the federal district case, Miller vs Bona (as California Attorney General), federal trial judge Benitez, who was appointed by former President George W. Bush to the Southern District of California, wrote a 94-page opinion issuing a permanent injunction against the law’s enforcement but stayed it for 30 days to give the state a chance to appeal to the 9th Circuit.

The reactions were immediate. “‘This is a direct threat to public safety and innocent Californians,’ [California Governor Gavin] Newsom said. ‘We won’t stand for it.’… California Assembly Speaker Anthony Rendon (D) told The Post that ‘all Californians are at greater risk as a result of this decision.’ House Speaker Nancy Pelosi (D-Calif.) on Saturday said the ruling ‘poses a clear & serious threat to public safety & innocent lives’ if it is upheld in court. ‘House-passed gun violence prevention bills must be enacted now,’ she tweeted.

“The news out of California reverberated across the nation over the weekend. Fred Guttenberg, whose 14-year-old daughter Jaime was killed in the 2018 mass shooting in Parkland, Fla., denounced the judge for using ‘the exact language of the gun lobby’ in his ruling. A version of the AR-15 was used to kill 17 people at Marjory Stoneman Douglas High School… ‘My daughter’s in a cemetery … because a Swiss Army knife was not used. Because it was an AR-15,’ Guttenberg, a gun safety activist, told CNN. ‘If a Swiss Army knife was used, my daughter and most of those other kids and adults would be alive today.’

“Brandon Wolf, a survivor of the 2016 mass shooting at Pulse nightclub in Orlando, also criticized Benitez on Twitter for the word-choice in his ruling: ‘I can assure you — if a Swiss Army knife was used at Pulse, we would have had a birthday party for my best friend last week. Not a vigil.’

“Gun rights advocates celebrated Benitez’s decision overturning the assault weapons ban. Alan M. Gottlieb, founder of the Second Amendment Foundation, a Washington state-based group involved in the lawsuit, said Benitez had ‘shredded California gun control laws regarding modern semiautomatic rifles.’ Brandon Combs, the head of the Firearms Policy Coalition, which helped bring the lawsuit to court, said in a statement that the judge’s ruling ‘held what millions of Americans already know to be true: Bans on so-called ‘assault weapons’ are unconstitutional and cannot stand… This historic victory for individual liberty is just the beginning…’”. Washington Post, June 5th. The NRA has estimated that there are already 15 million such assault weapons in U.S. civilian hands.

With a right-wing dominated U.S. Supreme Court, already laying down a pattern of rejecting both long-standing statutes (like significant provisions of the Voting Rights Act of 1965) and its own precedents (in juvenile sentencing and the retroactive application of jury unanimity requirements), the possibility of unchecked assault weapons ownership looms large. I guess we just do not have enough mass shootings and that it does not matter that only one in thirty civilian gun homicides in the United States is legally justifiable. Red states are tripping all over themselves passing new legislation expanding gun ownership rights, hoping for wide-open Supreme Court rulings. Texas, for example just passed a law that allows civilians to carry a gun in public without a license, a background check or the training that goes with it.

As the rest of the world remains aghast at this American gun culture, as judicial opinions continue to interpret the Second Amendment without truly addressing its intent by reason of the “well regulated militia” phrase, mass shootings just continue to be routine, risks each and every American must face every day. We clearly value automatic weapons far more than the lives of even our children. That the above federal ruling has occurred after thirty years is beyond shocking. 

Judge Benitez went into great detail in the hopes of avoiding an appellate reversal and perhaps generating a new legal direction from the highest court in the land. “‘This is by far the most fact-intensive, detailed judicial opinion on this issue ever,’ said Dave Kopel, an adjunct professor of constitutional law at the University of Denver and adjunct scholar at libertarian think tank the Cato Institute.

“State Atty. Gen. Rob Bonta called the decision ‘fundamentally flawed’ and said he would appeal… ‘There is no sound basis in law, fact, or common sense for equating assault rifles with Swiss Army knives — especially on Gun Violence Awareness Day and after the recent shootings in our own California communities,’ Bonta said in a statement.

“Last month, a gunman opened fire at a light rail yard in San Jose, killing nine co-workers and dying of an apparent self-inflicted gunshot wound… Officials said he was armed with three semiautomatic 9-millimeter handguns and 32 high-capacity magazines loaded with additional ammunition… AR-15s have been used in some of the nation’s deadliest mass shootings, including the attack at Orlando’s Pulse nightclub that killed 49 people in 2016, and one in Las Vegas that killed 58 people in 2017…

“In response to several mass shootings on his watch, President Biden announced in April that his administration would take steps toward greater gun regulation… They include a proposal to require background checks for self-assembled firearms — so-called ghost guns — and a law that would allow family members or law enforcement agencies to request a court order to take guns away from a person who is a danger to themselves or others. Nineteen states, including California, have already passed such laws.” Los Angeles Times, June 6th. 

Until Justice Antonin Scalia’s majority opinion in the 2008 Supreme Court decision in Heller vs D.C., the United States had no broadly based permissive approach to gun ownership. We’ve only gone downhill from there. The fact that flintlocks and muskets were the only known individual guns when the Bill of Rights was passed in 1789 also is never discussed.

I’m Peter Dekom, and the Second Amendment never contemplated ordinary civilians legally armed with military grade weapons as a fundamental constitutional right.