The Pro-Life Party’s Death Grip on Mass-Murder Weapons

Earlier this month, Judge Roger Benitez, a George W. Bush appointee, threw out California’s ban on AR-15 guns. He did so in a far-ranging opinion that managed not just to be wrongheaded but also offensive.

Let’s be clear: The opinion in Miller v. Bonta is a lot. There’s a wholeheartedly repugnant minimization of the damages assault rifles can do, some good old-fashioned massaging of statistics, and a bit of COVID misinformation thrown in for good measure.

“Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment,” Benitez says in his decision, declaring the AR-15 it “good for both home and battle,” and praising it for being “versatile.” He declares that this case is “not about extraordinary weapons lying at the outer limits of Second Amendment protection.” Apparently those weapons are things like “bazookas and howitzers or machine guns.” But AR-15s? Those are “fairly ordinary, popular, modern rifles” and this is “an average case about average guns used in average ways for average purposes.”

Average ways like being the gun of choice for mass shootings? AR-15 ammunition travels absurdly fast, essentially shattering the human body. But he’s right about AR-15s being popular: There are over 19 million of them in the U.S. Benitez also trots out a favorite exaggerated statistic of gun enthusiasts, that knives kill way more people. Which is true if you break out firearms into several categories: handguns, rifles, and shotguns. However, when you aggregate all firearms, you see that out of 1,679 murders in California in 2019, 1,142 involved firearms—a staggering 68%. He invokes another obligatory gun-group talking point: “Assault weapon” is a misnomer because the design of the rifle just helps a person shoot more accurately under pressure—an  opinion that basically says that as a point in favor of AR-15s. AR-15s are not “modern sporting rifles.” They are assault rifles. “Hunters themselves find the rifle controversial, with some arguing AR-15-style rifles empower sloppy, ‘spray and pray’ hunters to waste ammunition, reports Slate. 

Benitez is also really taken with the notion that a lot of people in California own assault rifles and that the assault-weapons ban is preventing them from buying more of them. That’s a curious way to think about legality: A lot of people want to do a thing, so it should be legal. But perhaps the weirdest, and worst part of the opinion is Benitez’s declaring that “more people have died from the COVID-19 vaccine than mass shootings in California.” This, of course, is a wildly imprecise statement. Mass shootings since when, for example? It’s difficult to determine exactly how many people have died from the COVID vaccine versus simply dying after they receive the vaccine. The CDC reports that there have been 302 million doses of the vaccine delivered in the last six months, with 5,208 reports of deaths, or .0017%. But those statistics just refer to people dying, not a linkage between the vaccine and death. 

So, if the CDC doesn’t know how to measure that, how would Judge Benitez? He also uses stats to imply that violent home-invasion style crimes happen left and right and that the world is a dangerous place that can only be fixed by assault rifles. When you’re scared of the whole world, apparently you have to shoot it. But conversely, Benitez assures us, mass shootings are rare, so why worry?

The California judge notes correctly that it is difficult to say what a mass shooting is, as different entities define it differently based on such factors as how many people have been shot. He also notes correctly that often handguns are used as mass-murder machines. One would hope that the logical conclusion to determining what constitutes a mass shooting event would involve finding ways to prevent such events from happening. Instead, he offers  triumphant gloating about how gun-control advocates are stupid because we aren’t being precise enough in assessing which weapons kill people most frequently. 

Over this past weekend, there were four mass shootings in the United States in just six hours. Thirty-eight people were wounded, and six people were killed. It’s a cynical and deadly worldview to simply brush that aside in your zeal for guns.

All this to say: It’s very likely California will appeal this case to the Ninth Circuit Court of Appeals, making it quite likely that it will wind up in the Supreme Court, who already agreed to hear a major gun-rights case for the October 2021 term, though that one deals with handguns, not assault rifles. 

As with Miller, that case is about pushing the boundaries of the Second Amendment until there are no restrictions left. New York State Rifle & Pistol Association Inc. v. Corlett is a challenge to New York’s law that requires an applicant for a concealed carry permit to show that “proper cause” exists to issue the permit. The statute doesn’t define what “proper cause” is, but at least one New York court has explained it as an increased need for self-protection in your community or your job. 

Two plaintiffs, along with the New York State Rifle & Pistol Association, which is affiliated with the NRA, challenged the state law, arguing that it’s unconstitutional to require concealed-carry enthusiasts to have a good reason to tote their handguns around. It’s depressingly likely the conservative wing of the Court will rule in favor of the plaintiffs and throw out New York’s law.

The way that conservatives want to deal with gun rights is the funhouse mirror inverse of how they deal with reproductive rights. The stance that access to guns should never be limited and states shouldn’t have the right to decide for themselves how to regulate guns stands in direct opposition to the stance that abortion should be regulated out of existence and any state that wants to do that, it’s just fine. 

There are other similarities to fights over abortion and fights over guns. Both involve conservatives creating an entire language structure to justify their thinking. With guns, it’s the fallback on “modern sporting rifles” and forever picking away at what the term “assault rifle” might mean. WIth abortion, it’s the the framing that abortion restrictions “protect women,” which is true only if you define “protect” so narrowly as to mean “stops them from having abortions.” Limiting reproductive health choices certainly doesn’t help with the maternal mortality rate or the mental health of pregnant people who are denied abortions. 

But the most notable similarities between the pro-gun and anti-choice crowd is their organizational skills when it comes to litigation. After notching a major Supreme Court victory back in 2008, gun groups said they would drown gun laws in litigation, going after every restriction they could. And it isn’t just the NRA. CNBC found that in just one state, Utah, six different gun-rights groups came to speak in favor of removing permit requirements. 

Correspondingly, when it comes to anti-choice laws, conservative groups have pushed conservative legislators to pass the most outrageous laws, including ten laws that completely ban abortions. And why not? They are confident that if these cases reach the Supreme Court, the Court will go their way. Missouri’s Republican Attorney General, Eric Schmitt, is chomping at the bit to get his abortion restriction in front of the Supreme Court. Mississippi’s GOP Governor, Tate Reeves, said that state’s draconian restriction was designed as a “vehicle” for the Court to overturn Roe v. Wade.

Gun groups, just like anti-choice groups, have a friendly Supreme Court now. That’s particularly true with the addition of Amy Coney Barrett, who Professor Adam Winkler, author of “Gunfight; The Battle Over the Right to Bear Arms in America,” said that an opinion of Barrett’s when she sat on the Seventh Circuit Court of Appeals was “revelatory” in that it showed she had “a very expansive view of gun rights.” Winkler noted that opinion, a dissent in Kanter v. Barr, shows that Barrett might be willing to invalidate things like “red flag laws,” that allow guns to be removed from people who are a danger to themselves or others.

Right now, the majority on the Supreme Court is functionally a death cult. During the pandemic, conservatives on the Court repeatedly struck down COVID-19 restrictions because religious groups asked them to do so. They made sure that Donald Trump could kill people on his way out the door, sweeping aside death penalty appeals and allowing executions right up until January 16, 2021. It’s a Court primed to find that guns are great in any circumstance, no matter how deadly. In a nation where we’ve had 272 mass shooting events in just 164 days, what an unbelievably tragic result that will be.