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California Appeals San Diego Judge's Ruling Overturning Assault Weapon Ban

 June 10, 2021 at 11:02 AM PDT

Speaker 1: 00:00 The state of California has appealed a recent federal ruling that struck down California's ban on assault weapons. The 94 page opinion handed down by judge Roger Benitez included a number of strange and unfounded claims. Here's California, attorney general, Rob Bonta speaking this morning. Speaker 2: 00:18 I think we can agree that the decision was disappointing and the reasoning such as equating assault weapons to Swiss army knives and false claims that COVID 19 vaccines have killed more people than mass shootings was shocking. Speaker 1: 00:33 Bonta was joined by a number of other state leaders who affirmed their stance on upholding the 32 year old ban on assault weapons. Joining us to help understand this development is Dan Eaton, legal analyst and partner at the San Diego firm at seltzer Caplan McMahon. And Vitech Dan, welcome. Good to be with you, Andrew, how did judge Benitez arrive at this conclusion that banning assault weapons is unconstitutional? Speaker 3: 00:56 Well, basically what the judge said was that, first of all, we're talking about a fundamental right, the second amendment, right to keep and bear arms for self-defense is recognized by the United States Supreme court in 2008. And then later in its 2010 Heller decision, which extended it to the states. And basically what he said was the assault weapons control act, which was enacted in 1989, before those landmark Supreme court decisions didn't really have a good fit between what the state was trying to accomplish and, uh, uh, the restrictions and therefore it had to go, well, the Speaker 1: 01:31 Second amendment refers to a well-regulated militia. So how have we arrived at this current situation where regulating the types of firearms that are legal and can be sold, could actually be deemed unconstitutional. Speaker 3: 01:43 First of all, the horse has left the barn on that one. Okay. So this debate about whether the second amendment is restricted to militia has now been decided by the United States Supreme court. Now, as your question properly pointed out, the question is the scope of that, right? And, uh, so what, uh, judge Benitas was trying to figure out is whether this assault weapons control act of went too far. And he said any way that when you're talking about the kinds of weapons that appear to be covered by this act of, they could be just as easily used for home defense. And because of that, uh, because it's a versatile, uh, weapon, that's what he meant by the reference to the Swiss army knife, which has gotten a lot of attention. Speaker 1: 02:27 Fornia says it's appealing this ruling to the ninth circuit court of appeals, and that court has historically been quite liberal, but we know it's changed in recent years. Do we have any idea how the judges on that court might view this ruling from judge Benitez? We Speaker 3: 02:41 Really don't Andrew and, uh, one of the issues is of course it depends on the panel, uh, that is drawn. And then of course, whether from the three judge panel, there's ultimately further review by an on bunk or fuller, a set of judges from the ninth circuit to look at whatever the three judge panel decides. It's not clear what is clear, however, is that however, the ninth circuit decides the case. It could very well get the attention of the United States Supreme court, which until this year decided not to take second amendment cases. Speaker 1: 03:14 We know that the nine justices on the Supreme court are very different now than they were in that Heller decision. Do we have any idea where they stand on issues of gun control? Speaker 3: 03:24 Well, broadly speaking, yes. Just based on their past record, uh, two of the newer justices who were appointed by Donald Trump, Brett Kavanaugh and justice Barrett, who is the, the newest judge justice have suggested some skepticism over controls over the right to keep and bear arms, which may explain why the Supreme court decided to take up this case. There is a, at least a suggestion that this court is going to be more inclined to look skeptically at restrictions on the right to keep and bear arms. The issue in the case is before the court right now, uh, deals with whether a license that is very hard to get, to carry a gun concealed outside the home and to unconstitutional infringement on the second amendment. That's a particular issue in that case, Speaker 1: 04:14 Judgement Nita's has issued similar rulings against gun control laws. How did this case end up before him and not a different judge in the Southern district? Speaker 3: 04:22 Well, because they want to keep similar cases together before the same judges to avoid exactly the kind of judge shopping that could create conflicting rulings within the same district. That that's the simple answer to that question. Otherwise cases are assigned on a random draw in federal court. And so the judges are ruling in this case. Uh, wasn't surprising, uh, only because he had issued similar rulings in, uh, prior decisions, but he clearly has a view on what the scope of the second amendment is and decided that the assault weapons control act, which was passed back in, uh, 1989 around, uh, fell of the right under the second amendment as the United States Supreme court has interpreted it. This comment Speaker 1: 05:07 About the Swiss army knife, you said has gotten a lot of attention. I'll just read directly from the judge's opinion. He wrote like the Swiss army knife, the popular AR 15 rifle is a perfect combination of home defense weapon and homelands defense equipment. Good for both home and battle. And he also made this puzzling comment about, uh, COVID-19. He said that more people had died from the COVID-19 vaccine than from mass shootings in California. That's not true. Could this use of false information have any impact on whether the ruling is upheld in higher courts? Speaker 3: 05:42 Well, of course it only the last part of what you said is truly, uh, uh, full, uh, potentially a false statement of fact, but it's not uncommon for judges to color their opinions. They are writing broadly for both a lay audience and a, a legal audience. It really doesn't go to the core of the legal analysis that he used. The Swiss army knife comment was made to underscore the versatility of a weapon. And he later went on to say, in the opinion, quote, this is an average case about average guns used an average ways for average purposes. Now that's a statement of opinion, but the judge after all was issuing an opinion, and that is ultimately going to be subject to review. But the core constitutional analysis is what the ninth circuit, uh, what the ninth circuit is going to be looking at. And that is whether the judge got it right, that the, uh, assault weapons control act went too far. Uh, given the rights under the second amendment, they're going to look at whether the assault weapons control act really was a reasonable, uh, fit for what the state was trying to accomplish in light of constitutional consideration. It doesn't appear the state fully took into account in 1989 before the Supreme court issued its landmark ruling, holding that the second amendment applies to an individual's right to keep and bear arms, as opposed to broader malicious, California Speaker 1: 06:58 Points to data showing that it's rate of gun deaths is lower than the national average. In fact, it is one of the lowest in the country. Do those kinds of facts or data matter when judges are considering or reviewing gun control laws like the one in California? Oh, Speaker 3: 07:14 They can, because it goes to the issue of whether this is a reasonable fit. Even though of course the legislature couldn't have known what the result of its handiwork would be, but sure judges are going to look at those kinds of issues, but they're also going to look more fundamentally at the core question of whether this legislation that is before them really goes a fell of, of the, uh, the right of the second amendment. This is all going to be about the scope of the second amendment and whether this particular law went too far. But yes, the state's experience with the law is certainly going to be a consideration in how the judges approach this issue. Speaker 1: 07:53 I've been speaking with Dan Eaton, legal analyst and partner at the San Diego law firm, seltzer Caplan McMahon. And Vitech Dan, thanks for joining us. Speaker 3: 08:01 Good to be with you, Andrew. [inaudible].

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In addition to appealing U.S. District Judge Roger T. Benitez's order that found the ban unconstitutional, California will ask the U.S. 9th Circuit Court of Appeals to extend the current 30-day stay of the ban, which Benitez issued along with his ruling last Friday.
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