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Today’s read: 12 minutes.
We’re skipping today’s reader question to give some extra space to the main story — but feel free to submit a question you want to be answered! Instead, we’re covering the ruling on the assault weapons ban in California, some important quick hits, and a jam-packed “Numbers” section.
- Terry McAuliffe, the former Virginia governor who left office in 2018, won the Democratic nomination for Virginia governor yesterday. He will run against Republican Glenn Youngkin this November in a race expected to draw record amounts of outside money. (The Washington Post, subscription)
- President Biden is making his first overseas trip, and plans to reassure European allies about America’s place on the world stage ahead of a meeting with Vladimir Putin. (Associated Press)
- President Biden revoked former President Trump’s executive orders targeting the Chinese-owned TikTok and WeChat apps, then signed a new order requiring security reviews of the apps. (The Wall Street Journal, subscription)
- Israeli Prime Minister Benjamin Netanyahu is refusing to give up control of the government, accusing his likely successors of “the fraud of the century.” (Axios)
- The Senate passed a $250 billion bill (by a 68-32 margin) aiming to increase U.S. competition with China by investing in artificial intelligence and semiconductor production. (Associated Press)
- BONUS: Florida Rep. Val Demings, once a candidate to be Biden’s vice president, formally announced her candidacy to challenge Marco Rubio for his Florida Senate seat. (NBC News)
What D.C. is talking about.
California. On Friday, a California judge overturned a three-decades-long prohibition on “assault weapons” in the state. U.S. District Judge Roger Benitez of San Diego called the ban a “failed experiment” that violated the second amendment rights of California citizens. The ruling described California’s ban on military-style rifles as legislation that deprived lawful citizens of the right to own weapons that are common across the United States.
California is facing a slew of lawsuits challenging its gun restrictions, which are the strictest in the country, including challenges from the San Diego County Gun Owners Political Action Committee, California Gun Rights Foundation, Second Amendment Foundation and Firearms Policy Coalition.
In his ruling, Judge Benitez compares AR-15s to common household tools. “Like the Swiss Army knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle,” Judge Benitez wrote in the opening sentence of the ruling.
California first restricted assault weapons in 1989. It banned the purchase, possession and manufacture of any guns the state defined as assault weapons. Since then, the state has repeatedly updated its law. In practice, the ban on assault weapons prohibits the sale of many semi-automatic centerfire rifles and semi-automatic pistols that have detachable magazines. There are many nuances to the law, including restrictions on modifications like a shortened barrel, collapsible stock, pistol grip, and thumbhole grip. Judge Benitez previously threw out the state’s attempt to ban magazines holding more than 10 rounds.
Judge Benitez ruled that California’s complicated laws, and the updates to them, trap law-abiding citizens with criminal penalties that can include the stripping of their right to own firearms. The state argued that assault weapons are defined in a way so as to prohibit the possession of guns that are commonly used in mass shootings, against law enforcement, or are generally more dangerous than typical firearms. It also argued that the restrictions are a public safety measure.
“This is an average case about average guns used in average ways for average purposes,” Benitez’s ruling said. “One is to 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.”
California Gov. Gavin Newsom, a Democrat, said the comparison to a swiss army knife “completely undermines the credibility of this decision and is a slap in the face to the families who’ve lost loved ones to this weapon.”
Judge Benitez put in a 30 day stay on the ruling, giving the state time to appeal, and meaning the assault weapons ban is still in place until an appeals court rules. Because of a conflicting ruling in a district court, it’s likely that a panel of judges in the ninth circuit court of appeals will make the final ruling on whether the ban stays or goes. Some believe the case may end up in front of the United States Supreme Court.
Below, we’ll take a look at some reactions from the right and left.
What the right is saying.
The right supports the ruling, saying it reinforces a Constitutional reality that the Supreme Court is likely to back.
“Despite the columns of many legal experts, that range of legislative action is quite limited as shown last week when a federal judge struck down California’s three-decade-old ban on assault weapons as a violation of the Second Amendment,” Turley said. “Claims surrounding the AR-15 are often detached from the comparative realities of this and other weapons. The AR-15 and other weapons in its class use an intermediate cartridge that actually is less powerful than that used in a rifle. The appeal of guns like the AR-15 is due to that [sic] fact that they are modular and allow for different grips and barrels.
“Benitez noted many of the same issues in his decision,” Turley wrote. “He held that the ban cannot satisfy any level of heightened scrutiny. He notes that the popularity of the AR-15 is due to its versatility… These are difficult policies and difficult cases. Reasonable people can disagree, including on the meaning of the Second Amendment. What is troubling is the level of misleading and frankly disingenuous discussion of the issue. The public is constantly being told that electing certain politicians will result in sweeping gun control when the current case law directly contradicts such assertions.”
In The American Spectator, Lou Aguilar cheered on Judge Benitez for being another conservative Hispanic crushing minority stereotypes.
Democrats have chipped away at the Second Amendment for longer than I’ve been alive, most recently in a crusade against the phenomenally popular AR-15 rifle, using the ‘mass shooter’s weapon of choice’ argument,” Aguilar wrote. “Benitez’s 100-page opinion masterfully stomped that canard by citing the rifle’s defensive use: ‘In the self-defense context, which seems to be more common, taking accurate shots at attackers is vitally important for the innocent victim.’ The sudden, surprising removal of the gun-grabbers’ longtime beachhead crushed progressives almost as much as the remover being a Latino, which was supposed to guarantee his sheepish obeisance.
“As Cuban immigrants, we personally experienced the obliteration of human rights by statist tyranny,” Aguilar said. “A Second Amendment would have come in handy versus Castro in Cuba, and we would prefer it ‘not be infringed’ here. America saved us, and we intend to return the favor. Judge Benitez did his part on Friday, torpedoing the concept of Hispanic groupthink, the Left’s Achilles’ heel.”
In Bearing Arms, Cam Edwards asked why Democrats aren’t pushing their own assault weapons bans if they’re so sure it’s good policy and smart politics.
“Are these Democrats beholden to the ‘gun lobby’? Are they secretly in the back pocket of the NRA? Of course not. The reason why blue states like Colorado, Oregon, and Rhode Island are shying away from going all in on a gun ban is simple political expediency,” he wrote. “Despite the claims by gun control activists that Americans are eager to embrace a ban on the most popular rifle in the United States (one that’s owned by more than 20-million voters), Democrats have seen the same polls that you and I have that show a decline in support for new gun control laws [Editor’s note: there are an estimated 20 million assault rifles in the U.S., but that doesn’t mean they are owned by 20 million different voters]. They’ve seen the reports of a surge in gun ownership among Black, Hispanic, and Asian Americans; all groups that tend to support Democrats more than Republicans. They may even be worried about the reaction from groups on the far Left that want to defund or abolish police, given the fact that any gun ban is going to lead to more minorities being put in prison for non-violent crimes.
“If Democrats really believed that they could pass an ‘assault weapons’ ban, even at the state level, without suffering political consequences, they would have gone full steam ahead in Oregon, Illinois, Rhode Island, Virginia, and other states where they control the levers of government,” he said. “Instead, most of the legislatures in these states have already adjourned without either chamber approving or seriously discussing a gun ban. It’s not that these anti-gun politicians have suddenly lost their desire to ban so-called assault weapons, but instead that they’ve gained awareness that any ban imposed right now would come with a high political cost.”
What the left is saying.
The left hammered the ruling as a dangerous change of law that could have a huge impact on the entire country.
The Washington Post editorial board criticized the ruling, saying Benitez’s opinion was “rightly mocked for its ludicrous likening of an AR-15 rifle to a Swiss Army knife.”
“Also disturbing was his argument that assault weapons are protected by the Second Amendment because they could be useful in a citizens militia, citing his birth country of Cuba and the revolution there. Just the suggestion the country needs after the Jan. 6 insurrection at the U.S. Capitol,” the board wrote. “The ruling runs counter to repeated decisions over the years in both state and federal courts upholding prohibitions against assault weapons on the grounds of the state’s compelling interest in protecting public safety.
“Among the states where bans of these weapons of war were ruled constitutional are Massachusetts, New York and Maryland. California’s own law was previously upheld by a federal district court of California and multiple state appellate courts,” they added. “But those familiar with Judge Benitez, appointed to the federal bench by President George W. Bush, were not surprised by his ruling. He once wrote ‘the Second Amendment gets even less respect’ than Rodney Dangerfield, and he previously struck down a law passed by the state’s voters that would have banned possession of magazines holding more than 10 bullets, a decision now pending appeal before the Ninth Circuit. His court, the New York Times reported, has become a welcoming place for gun-rights advocates because of a rule that allows ‘related cases’ to be funneled to one judge rather than randomly assigned.”
In the Los Angeles Times, Erwin Chemerinsky said the ruling “makes us less safe.”
“This is the most extreme gun rights ruling yet from a federal court,” Chemerinsky said. “Every other court in the country has upheld bans on assault weapons. This ruling is wrong as a matter of constitutional law and of common sense. Unfortunately, though, a majority of the current Supreme Court justices are very likely inclined to expand gun rights. But I hope they will not go so far as to declare that the Constitution protects a right to have an assault weapon.
Chemerinsky pointed to Justice Scalia’s decision in 2008, in District of Columbia vs. Heller, which asserted the right of Americans to have guns in their homes but “stated that the right to possess arms was limited to weapons that ‘were in common use at the time’ the 2nd Amendment was ratified. He said this ‘limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ No one can argue that AR-15 style weapons existed, let alone were in common use, in 1791. Nor can it be denied that they are very dangerous weapons. This type of semi-automatic weapon has been used in many of the worst mass shootings in the United States, including the 2012 Sandy Hook Elementary School shooting, the 2015 San Bernardino attack, the 2017 Las Vegas shooting, the 2017 Sutherland Springs church shooting, the 2018 Stoneman Douglas High School shooting and the shooting at a Colorado grocery store in March that killed 10 people.”
Ruth Marcus said that it usually “makes little sense to pay much attention to a single opinion by a single federal trial judge” when “there are nearly 700 district-court judges. Their decisions are just the beginning of the matter.”
“But Roger Benitez, a George W. Bush appointee in San Diego, has earned himself an exception to this rule with an opinion striking down California’s three-decade-old assault weapons ban as a violation of the Second Amendment,” she wrote. “Benitez’s approach, albeit in more sober-sounding language, has every prospect of prevailing as gun cases make their way through increasingly conservative federal courts to the conservative-dominated Supreme Court.
“As Benitez analyzed the constitutionality of the California law, he said the question was simple: ‘Heller asks whether a law bans a firearm that is commonly owned by law-abiding citizens for lawful purposes. It is a hardware test,’ he wrote. ‘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.’ This is dangerously circular: If a dangerous weapon achieves enough market saturation, it’s not subject to regulation, even if lawmakers conclude that is the best way to protect the population.”
Judge Benitez is getting a lot of heat for the tone of his ruling, and — frankly — it’s well deserved. No reasonable person would compare a Swiss Army knife — something I’d gift a 10-year-old — to an AR-15. Unfortunately, that wasn’t even the most absurd thing Benitez said in his ruling. That award goes to his unsubstantiated claim that “more people have died from the Covid-19 vaccine than mass shootings in California.” Even if this were true (which it isn’t), it’s actually a self-defeating argument. If California has had very few mass shooting deaths, while the country as a whole seems to have one every day, that’d probably be used as evidence that the 30-year-ban he just struck down was working. Not a particularly wise quip from the judge.
Of course, claims like that — and the other ridiculous things he wrote in his ruling — might be expected from a judge the American Bar Association assessed as “not qualified” because of “significant concerns about Judge Benitez’s judicial temperament and his courtroom demeanor,” or his fellow lawyers who said he was “arrogant, pompous, condescending, impatient, short-tempered, rude, insulting, bullying, unnecessarily mean, and altogether lacking in people skills.” Not exactly a ringing endorsement.
His intentionally derisive and provocative ruling aside, though, Benitez’s approach here deserves the attention it’s getting — because it’s a strong defense for second amendment advocates given the precedent since the Supreme Court’s 2008 ruling in District of Columbia v. Heller. Before then, the Supreme Court had mostly held that the 2nd amendment was solely a right to exercise for the purpose of militia service. Since that monumental ruling, in which “common use” weapons were given more protection, rulings like Benitez’s have had far better odds of standing up to appeals.
What he got right is that weapons like the AR-15 are incredibly popular and overwhelmingly used for lawful purposes (like sport hunting). It’s also true that California’s laws are complicated, contradictory, hard to follow and burdensome. Just read this 2016 update on the definition of an assault weapon, which bans things like “grenade launchers” right next to semi-automatic pistols with a second handgrip. I wouldn’t blame a California gun owner attempting to navigate these laws for being frustrated; nor do I think the penalties for violating them are likely to be proportional to the offense.
Benitez was also right that murder by knife in California occurs seven times more often than murder by rifle. And that mass shootings there are exceedingly rare. At the same time, he calls the ban a “failed experiment” because it has not stopped all mass killings with assault weapons since it was enacted in 1989. This, again, is contradictory thinking that he never squares. Are laws against robbery a “failed experiment” because robberies still happen? And if mass shootings are very rare in California, wouldn’t the state’s laws get some credit for that? Isn’t saying the law failed because mass shootings happen but we don’t need the ban because mass shootings are rare two arguments that have trouble co-existing?
There are limits to any Constitutional right, and the right to own firearms is not absolute. There are perfectly good arguments against California’s ban — namely, as I have said in the past, that all-out prohibitions often do little to solve the problem and instead add to our prison population and create illicit black markets. If you’re worried about death by firearms, assault weapons bans are probably not in the top 10 of things we need to solve. Even with the ban, more than 185,000 assault weapons are estimated to be registered in California.
We don’t have great data on assault weapons, partly because of the moving target that is their definition and partly because the gun lobby blocks efforts to study gun violence, but they don’t seem to be common in criminal activity. More than one million non-assault weapons were bought in the state last year, and those other firearms — like handguns — are disproportionately used in the commission of crimes. So what, exactly, is the ban doing or preventing?
It’ll be interesting to see how this case moves through the courts and what other rulings come of it. I think the tension between the government’s obligation to protect public safety and to uphold gun rights is perfectly healthy for the country — and that there are obvious limits we need to draw. California’s assault weapons ban, which has been repeatedly amended, and the squishy definition of “assault weapons” more generally, currently stands as a murky set of inconsistently applied standards that’s due for some clarification. I’m comfortable with the argument that it’s burdensome for many California gun owners, and my biases (which tend to loathe government bans and shoddy legislation and appreciate the right to own firearms) left me hoping to find favor in Benitez’s ruling. Instead, it struck me as a half-baked, trolly screed meant to “trigger the libs.” He can do better, and hopefully, the judges who take on this case next time around will.
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A story that matters.
ProPublica obtained a vast cache of IRS information showing how billionaires like Jeff Bezos, Elon Musk and Warren Buffett pay so little income tax. The report also included details about former New York mayor Michael Bloomberg, who reportedly paid $70.7 million on $2 billion in income in 2018, or about a 3.7% conventional tax rate. “Taken together, it demolishes the cornerstone myth of the American tax system: that everyone pays their fair share and the richest Americans pay the most,” ProPublica reported. “The IRS records show that the wealthiest can — perfectly legally — pay income taxes that are only a tiny fraction of the hundreds of millions, if not billions, their fortunes grow each year.” The report comes at a time when President Biden is urging legislators to increase IRS enforcement and taxes on the wealthy.
- 14,400. The number of gun-related homicides in the U.S. in 2019.
- 73%. The estimated percentage of all homicides that involved a firearm.
- 42%. The percentage of Americans who said they had a gun in their home in 2020, according to Gallup.
- 51%. The percentage of Americans who said they had a gun in their home in 1994, the highest percentage ever recorded by Gallup.
- 57%. The percentage of Americans who say laws covering the sale of firearms should be made more strict.
- 34%. The percentage of Americans who say laws covering the sale of firearms should stay as they are now.
- 9%. The percentage of Americans who say laws covering the sale of firearms should be made less strict.
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Most marriages — and many American families — are complicated. But Debby Neal-Strickland, Jim Merthe and Mylaen Merthe took things to a whole new level. Just two days after Neal-Strickland married Jim, she took off her wedding gown and put on her hospital gown — in order to donate a kidney to Jim’s ex-wife, Mylaen. Jim and Mylaen had maintained a relationship two decades after getting divorced while raising their children, and when Debby heard that Mylaen’s brother wasn’t a match, she stepped up to see if she was. Debby jumped at the opportunity, but it took on special meaning because her brother died of cystic fibrosis years before when he couldn’t find an organ donor. “When somebody needs an organ, if they don’t get it, they’re probably not going to make it. I know it’s something that you do quickly,” she said. (Associated Press)