From California to D.C., judges are pointing knives at the Constitution and guns at us

·5 min read
California Department of General Services

Among the goods the California Department of General Services offered to the highest bidder last week was a box of pocketknives weighing “approximately 27 pounds” — one of 30 similar collections being sold by just one of scores of governments across the country. The Transportation Security Administration is second to none in its determination to seize such harmless tools to (checks notes) prevent another 9/11. A perpetual nationwide pocketknife auction is among the ridiculous results of that leviathan air security apparatus and, more broadly, of supposed government efforts to protect life and liberty that bear little correlation with the threats thereto.

Last spring, however, in an obscure California corner of the judiciary, someone finally seemed to see it the TSA’s way. Roger Benitez, a San Diego-based federal judge, opened a major ruling by drawing a direct comparison between pocketknives and military-style assault rifles. Could it be that we were about to learn why these tiny tools are indeed dangerous killing machines?

But Benitez wasn’t arguing that pocketknives are dangerous weapons requiring strict regulation; he was making the even more absurd case that AR-15s are not. “Like the Swiss Army knife,” began one of the least predictable sentences in jurisprudence, “the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment.” From there he proceeded to find California’s long-standing prohibition of AR-15s and other assault rifles unconstitutional.


Two years earlier, the same ingenious jurist contrived to find that the state’s ban on high-capacity magazines also runs afoul of the core principles of our founding document. Or as the Sacramento-based Firearms Policy Coalition put it more recently: “Individuals have a natural right to keep and bear arms — one that is enshrined in our Constitution and which preexists government itself — and that entitlement includes the right to purchase and possess firearm magazines holding more than 10 rounds of ammunition.”

Thus spake Madison?

Six months ago, a disgruntled transit employee using high-capacity magazines slaughtered nine of his coworkers in a San Jose rail yard in the deadliest shooting the Bay Area has ever seen. So it might seem heartening that the San Francisco-based Ninth U.S. Circuit Court of Appeals finally overruled Benitez on that subject this week and is expected to take more than a pocketknife to his assault weapons ruling as well. It might indeed if not for the fact that the laws could end up before the U.S. Supreme Court with far dimmer prospects.

Unlike Swiss Army knives, AR-15s and other firearms took the lives of nearly 40,000 Americans in 2019, with a strong correlation between the unrestricted permission to possess them and the number slain. The average American is about 70% more likely to be killed by a bullet than the average Californian — and about seven times more likely to die that way than the average Norwegian. But Benitez wasn’t swayed by the fact that gun laws save lives, and most of the Supreme Court probably won’t be either.

That’s true even though the same high tribunal spent Wednesday morning apparently preparing to undermine or overturn a nearly half-century-old precedent in the name of protecting the hypothetical lives of fetuses that have yet to become independently viable or, in some cases, noticeable to those bearing them. As Justice Sonia Sotomayor noted, those the state would thereby compel to bear children are at 14 times greater risk of death than those who legally end their pregnancies before viability: “When does the life of a woman and putting her at risk enter the calculus?” Sotomayor demanded. “Now the state is saying to these women, ‘We can choose ... to physically complicate your existence, put you at medical risk, make you poorer ... because we believe — what?’”

But it’s a hopeless argument in a court remade in the image of the former president who presided over the deaths of over 400,000 Americans from COVID and announced his last nomination to its ranks, of Amy Coney Barrett, at an event that helped super-spread the deadly virus from within the White House. The far-right majority so augmented went on to rein in Gov. Gavin Newsom’s measures to protect Californians from the contagion by discerning a constitutional right to gather indoors during a respiratory pandemic.

The right of the people to be secure in their persons, which the conservative justices pretended to have so much trouble fathoming this week, is more in keeping with the spirit of the Constitution and the Bill of Rights than any newly invented right to spread a dangerous disease or pack almost any kind of deadly firearm. The Second Amendment was drafted by 18th-century Englishmen with a justified but now quaint distrust of standing armies, which they hoped to supplant with citizen volunteers for the national defense. Now their misbegotten amendment has been repurposed to add a second standing army of civilians interspersed among us and supposedly defending nothing more than themselves and their homes with an arsenal of advanced weaponry.

The great legal minds populating our highest courts can imagine no constitutional haven from government oversight of the viscera and futures of half the population. But they assert that the same document, if not God Himself, ordains equipping this ragtag force with rifles capable of firing off more than 10 rounds without the inconvenience of reloading. If you believe that, I have 27 pounds of pocketknives to sell you.

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