Jonathan Turley: Second amendment realities – court rulings keep politicians' gun control promises in check

Reptile · Jun 6, 2021

There is a disconnect between political promises and constitutional realities in the area of gun control

For many years, there has been a growing disconnect between political promises and constitutional realities in the area of gun control.

Politicians have run on promises of sweeping gun control legislation that would clearly violate controlling case law under the Second Amendment. After every mass shooting, politicians pledge that they will get guns out of society when they know that such promises mislead voters on the range of permissible action in the area.

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. The decision could be raised in the ongoing consideration of the nomination of David Chipman, who President Joe Biden wants to head the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

In Miller v. Bonta, U.S. District Judge Roger Benitez of San Diego found that the ban on weapons like the AR-15 are based on both a misunderstanding of the weapons and a misinterpretation of the Constitution.

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 fact that they are modular and allow for different grips and barrels.

Benitez noted many of the same issues in his decision. 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. In the one controversial line of the opinion, he observed "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."

The problem is that many politicians like California Gov. Gavin Newsom opposed the decision of the Supreme Court in 2008 in District of Columbia v. Heller affirming the right to bear arms is an individual right under the Second Amendment. The court has repeatedly reaffirmed that landmark decision. In 2010, the court ruled that this constitutional right applies to the states as it does to the federal government since it is one of those "fundamental rights necessary to our system of ordered liberty."